General terms and conditions of supply
1.1. For the contractual services offered to be provided by the Dipl. Ing. K. Dietzel (hereinafter referred to as “Dietzel GmbH”), the following apply in the following sequence:
- the individual contractual agreement of the parties;
- these general terms and conditions of supply;
- the German Civil Code.
1.2. With the placement of the order (number 3 of these general terms and conditions of supply), the buyer recognises these general terms and conditions of supply of Dietzel GmbH. They are applicable for the entire present and future business relationship.
1.3. Conflicting general terms and conditions of supply or general terms and conditions of business of the buyer will not become the basis of the contract. This holds good even if Dietzel GmbH has not expressly contradicted these contradictory conditions of the buyer. Other conditions, individual agreements/ contracts and/or agreements are only binding if they have been agreed in writing. In these cases, the General Terms and Conditions of Supply of Dietzel GmbH apply additionally.
2. Functional specification
2.1. All the products of Dietzel GmbH like fittings, distributors, pipes and hosepipes are hydraulic components and serve for transmitting hydraulic energy and hydraulic signals. All the hydraulic components are approved exclusively for hydraulic oils based on mineral oils in accordance with DIN 51524-1. Other media may only be used after written approval by Dietzel GmbH. Before installation, commissioning and operation, the buyer must examine whether he has chosen the correct component with regard to the pressure range and temperature range, the medium, the bending radius and the length. Moreover, the buyer must comply with the national safety specifications and standards.
The operating manuals of Dietzel GmbH hold good for all products of Dietzel GmbH. The operating manuals of Dietzel GmbH can be viewed at www.dietzelhydraulik.de.
2.2. The information contained in binding functional specifications in accordance with no. 2.1 conclusively define the properties of the respective works performances of Dietzel GmbH.
2.3. Any data and information other than what has been defined in no. 2.1 - regardless of whether they are present in electronic or any other form and/or are contained in the general product documentation of Dietzel GmbH as well as in technical data and price lists - are not binding. They serve exclusively for purposes of product description and do not contain any information about a certain attribute or about suitability for a specific purpose of use. They do not release the buyer from his own estimation of the possibility of using a product of Dietzel GmbH. This also applies to explanations by and to representatives and staff of Dietzel GmbH. They only come into effect with a written confirmation. The same applies to retrospective changes and enhancements to the contractual services.
3. Quotation and contract conclusion
3.1. The buyer is bound to his quotation that is directed at Dietzel GmbH. Dietzel GmbH can accept such a quotation by sending a written order confirmation within a reasonable time, or by providing the contracted works performance to the buyer within the same reasonable time. As against that, assurances provided by Dietzel GmbH verbally, telegraphically, telephonically or by means of electronic data transfer are non-binding.
3.2. If the business relationship with a buyer is long-term and/or ongoing, the original plans and product descriptions available with Dietzel GmbH, regardless of whether they originated from Dietzel GmbH or from the buyer, continue to remain in force if there is a re-order or a new order, unless the buyer expressly and in writing draws attention to change requirements, or visually highlights them in the plans and product descriptions to Dietzel GmbH as a change requirement.
4.1. Unless it has been agreed differently, the prices from Dietzel GmbH hold good ex-works; packing costs are not included in the price. The applicable VAT is not included in the compensation that is indicated in the contract or in the order. It will be shown separately on the invoice and the amount will be in accordance with the legally defined magnitude on the day of generation of the invoice.
4.2. If nothing different has been agreed with the buyer, the compensation for the contracted services is due within 14 days of the date of the invoice without any deduction. A payment will be considered to have been effected only when the contracted compensation has been received by Dietzel GmbH or in one of the accounts specified in the invoice. Payment by cheque will be considered to have been received only upon the amount being credited in the account.
4.3. If the agreed delivery period exceeds a period of four months from the date of contract sign-off, or if the delivery is delayed by more than four months from the date of contract sign-off for reasons for which the buyer alone is responsible, or which fall entirely in his scope of risk, then Dietzel GmbH is entitled to charge the price prevailing on the day of delivery. A notice period of four weeks applies to the coming into force of the increase. If the increase amounts to more than 5% of the originally agreed compensation, the buyer is entitled to withdraw from the contract. This right to withdrawal becomes null and void if the buyer does not exercise it within a period of two weeks, starting with the date of notification of the price increase.
4.4. If the buyer exceeds the period defined in no. 4.2 or in deviation therefrom, if a payment date specified on the invoice is exceeded, the buyer will be considered to have delayed payment without any further declaration. If there is a delay in payment, Dietzel GmbH can demand interest at 8 percentage points above the base interest rate from the day the payment becomes due. Dietzel GmbH retains the right to prove higher damage, and the buyer retains the right to prove lesser damage. Moreover, in case of a delay in payment by the buyer, Dietzel GmbH is entitled to pause the provision of further contracted services till the buyer, at the discretion of Dietzel GmbH, either makes the payment or produces an irrevocable, indefinite, directly enforceable surety from a major German bank or a German Sparkasse.
4.5. If the buyer does not meet his payment obligation despite a deadline having been set accompanied by a warning reminder, Dietzel GmbH can withdraw from the contract and demand damage compensation as defined in the legal provisions, including lost profit. However, Dietzel GmbH must also offset whatever it will be saving as a result of withdrawal from the contract, or will earn from differently deploying its labour force elsewhere, or would have earned, if it maliciously does not deploy them elsewhere.
Insofar as Dietzel GmbH has to offset the expenses it saved, it is considered to have met its responsibility to prove the magnitude of these savings, if it submits the difference between the expected and actual operational debiting process as derived by an independent tax consultant or equivalent expert with estimated figures that he has credibly extracted from the books.
In deviation from the above, Dietzel GmbH may calculate the amounts to be subtracted in lump-sum form as 60% of the remuneration that would have been paid for the services not performed. The buyer is free to prove that the costs actually saved by the termination exceed the agreed lump-sum amount. The obligation of Dietzel GmbH to offset any substitute income from a possible alternative deployment of its workforce remains unaffected.
4.6 In case of economic inability of the buyer, especially if a bankruptcy application has been filed or if there is a justifiable doubt as to the continued creditworthiness, Dietzel GmbH can claim from the buyer all the receivables from the business relationship that have not yet become payable, and demand an advance for future performance.
4.7 In case of the presence of deficiencies, the buyer does not have a right of retention, unless the right of retention is based on the same contractual relationship and the delivery is obviously deficient; in such a case, the buyer is only entitled to retention if the retained amount is reasonably proportionate to the deficiencies and the probable costs of rectification, especially of remedial action.
The buyer is only entitled to offsetting, even if a notice of defects or counter-claims have been filed, if the counterclaims have been legally established, recognised by Dietzel GmbH or are undisputed. The buyer is not entitled to file claims and rights owing to deficiencies, if he has not made payments that are due and the overdue amount is in reasonable proportion to the value of the deficient delivery.
5. Delivery and performance period
5.1 Deadlines and periods are non-binding if they have not been expressly been agreed as being binding in writing. In such a case, the buyer can set Dietzel GmbH a further reasonable period for providing the goods or service. If this additional period is not reasonable, Dietzel GmbH must immediately contradict it and notify what a reasonable period would be. In case of doubt, the delivery periods specified in the order confirmation by Dietzel GmbH apply.
5.2 Delivery periods are considered to have come into force with the dispatch of the written order confirmation by Dietzel GmbH. However, the start of the period gets moved up to the fulfilment of any obligation to cooperate of the buyer, especially in terms of provision of documents, plans, approvals, clearances to be obtained by the buyer, as well as compliance with the agreed payment terms and other obligations of the buyer.
5.3. Compliance with the delivery period is said to have been achieved if Dietzel GmbH notifies readiness to dispatch to the buyer, and the goods cannot be delivered in time for no fault of Dietzel GmbH and/or the services cannot not be performed by Dietzel GmbH in time.
5.4. Dietzel GmbH can stand by its commitment to timely provision of its services only if it receives the required deliveries and other services in time or the buyer fulfils his obligations properly and in time. If the required deliveries from third parties are not received in time, Dietzel GmbH can stand by its commitment for timely delivery if timely replacement delivery by other suppliers is possible.
If the materials required for provision of the performance of Dietzel GmbH are not delivered at all, Dietzel GmbH is not liable, if this is legally permissible.
5.5 In cases of Acts of God, the periods and deadlines will be postponed by a period equal to the period of the performance-hindering event. The Acts of God include, for example, strikes, blockades, natural disasters or similar unforeseeable events. This also applies if the circumstances occur with subcontractors that Dietzel GmbH entrusts with or has entrusted with the work, and it has not been possible to involve other subcontractors to carry out the work. Dietzel GmbH is released from responsibility under the aforementioned circumstances even if they occur during an ongoing delay.
5.6. If there is a hindrance, the deadline voiding effect ends 3 working days after discontinuance of the deadline-voiding event. Dietzel GmbH will inform the buyer immediately, but not later than within a week in writing, about the occurrence of the hindrance and its reasons. If Dietzel GmbH is not responsible for the hindrance, and the hindrance gets continued for a period of 4 months, Dietzel GmbH can partially or entirely withdraw from the contract. Moreover, Dietzel GmbH can demand from the buyer within a reasonable period, a declaration whether the buyer is withdrawing from the contract because of the delay in performance, or whether he insists on the delivery. If there is no declaration from the buyer, too, Dietzel GmbH can withdraw from the contact. In either case, withdrawal of Dietzel GmbH does not make Dietzel GmbH liable to damage compensation. In case of withdrawal, Dietzel GmbH will pay the corresponding appropriate consideration to the buyer without delay.
5.7. If Dietzel GmbH culpably cannot keep an expressly agreed deadline, the buyer must set Dietzel GmbH a reasonable grace period - starting from the date of receipt of the written notification of delay at Dietzel GmbH, or in case of a calendar-defined deadline, starting with the next successive day. If this grace period elapses without result, the buyer is entitled to withdraw from the contract.
5.8. Dietzel GmbH is liable for delay in performance in cases of wilful intent or gross negligence on the part of Dietzel GmbH or its legal representatives or assistants in accordance with the legal provisions. However, in case of gross negligence, the liability of Dietzel GmbH is limited to the contract-typical, foreseeable damage if none of the exception cases described in Sentence 5 of this provision is present. Otherwise, the liability of Dietzel GmbH because of delay in performance for damage compensation in addition to the performance is limited for every completed week to 0.5%, but to a maximum of 4% and for damage compensation instead of the performance to 8% of the value of the contracted performance. Any additional claims of the buyer are excluded - even if a grace period for the performance that is granted to Dietzel GmbH elapses. The aforementioned limitation does not apply in case of injury to life and limb or to health. No. 5.7 remains unaffected.
5.9. Dietzel GmbH is liable for impossibility of performance in cases of wilful intent or gross negligence on the part of Dietzel GmbH or its legal representatives or assistants in accordance with the legal provisions. However, in case of gross negligence, the liability of Dietzel GmbH is limited to the contract-typical, foreseeable damage if none of the exception cases described in Sentence 5 of this provision is present. Otherwise, the liability of Dietzel GmbH because of impossibility of performance, for damage compensation and for reimbursement of any futile expenses is limited to a total of 8% of the value of the contracted performance. Any claims of the buyer because of impossibility of performance are excluded. These limitations do not apply insofar as liability is accepted for wilful intent or gross negligence or owing to injury to life and limb or to health. The right of the buyer to withdraw from the contract remains unaffected.
5.10. Any further liability for delay in performance for which Dietzel GmbH is responsible is excluded. The additional legal claims and rights of the buyer, to which he is entitled over and above the damage compensation entitlement owing to a delay in performance for which Dietzel GmbH is responsible, apply in accordance with no. 8 of these general terms and conditions of supply.
5.11. Any change in the burden of proof to the disadvantage of the buyer is not bound to the aforementioned provisions.
5.12. Dietzel GmbH is entitled to make part deliveries and provide part performance at any time, provided this is just reasonable for the buyer.
5.13. If there is a delay in acceptance on the part of the buyer, Dietzel GmbH is entitled to demand compensation for the damage incurred and any additional expenses. The same applies when the buyer culpably fails in the discharge of his obligation to cooperate. With the occurrence of the delay in acceptance or the debtor’s default, the risk of coincidental degradation and of accidental loss gets transferred to the buyer. No. 6 of these general terms and conditions of supply remains unaffected.
6. Transfer of risk - dispatch / packing
6.1. The risk gets transferred to the buyer upon hand-over to a freight forwarder or carrier, but at the latest, upon leaving the premises of Dietzel GmbH, or from the day of notification of readiness to dispatch.
6.2. In the absence of special instructions, the mode of dispatch and the dispatch route is left to the discretion of Dietzel GmbH, with the exclusion of any liability. No. 8 of these general terms and conditions of supply applies analogously.
6.3. Loading and dispatch will be done on an uninsured basis at the risk of the buyer. Dietzel GmbH will make the best efforts to take into consideration the wishes and interests of the buyer as regards the mode of dispatch and the dispatch route; additional costs incurred as a result - even if the agreement is for carriage-paid - will be debited to the buyer.
6.4. If so desired by the buyer, and at the buyer’s cost, Dietzel GmbH can have the delivery insured by a transport insurance company. However, Dietzel GmbH does not accept any responsibility for the execution of the insurance.
6.5. If the dispatch of the consignment gets delayed because it is so wished by the buyer, or owing to a problem on the part of the buyer, Dietzel GmbH will store the goods at the risk of the buyer. If the dispatch of the consignment, in this context, is delayed by more than 2 weeks beyond the agreed delivery date, or if a delivery date was not agreed, beyond the notification of readiness to dispatch by Dietzel GmbH, the buyer can be charged storage charges of 0.5% of the value or of the price of the consignment object for every month or part thereof, subject, however, to a maximum of 5%. The buyer is at liberty to prove that Dietzel GmbH did not incur any storage costs or incurred significantly lesser costs. Dietzel GmbH is at liberty to prove that higher costs were incurred. Moreover, Dietzel GmbH is entitled to withdraw from the contract after a reasonable period has elapsed. The costs that Dietzel GmbH incurs during this process will be invoiced to the buyer.
6.6. In the absence of any special agreement, the type of packing is left to the discretion of Dietzel GmbH. Packing will be charged at cost price. As has been laid down in the Packaging Ordinance, Dietzel GmbH does not take back transportation packaging and other packaging. Pallets are an exception. The buyer has to arrange for disposal of the packaging at his own cost.
7.1. Fundamentally, there exists a warranty obligation on the part of Dietzel GmbH, and subject to the conditions specified herewith, only provided that the buyer, when using the services of Dietzel GmbH, complies with its parameters as specified in no. 2.
7.2. If there are only insignificant deviations of the supplied goods from the agreed quality, with only an insignificant impairment of the usability, with natural wear under excessive stress, if unsuitable operating equipment is used, or other operating equipment that does not conform to the specifications or with deficiencies that arise owing to special external influences, which are not assumed as preconditions in the contract, and for quantity deviations that are normal in commercial practice, the buyer does not have any warranty entitlement. The warranty obligation is also rendered invalid if the object of the contract is incorrectly modified by the buyer or by a third party or by fitting parts of third-party origin, unless the deficiency does not have any causal relationship with these measures. Moreover, the warranty obligation is rendered invalid if the buyer or a third party has carried out installation or repairs incorrectly, as also in case of non-compliance with operating and maintenance manuals, crimping dimension tables, usage, handling and installation specifications, and in case of faulty selection of the dispatch and packaging, if the dispatch and packaging were based on specifications of the buyer. Otherwise, the rights to damages for any deficiencies exist, subject to the conditions below, only if the buyer has properly fulfilled his legally owed inspection and notification responsibilities.
7.3. If there is a deficiency in the goods, then Dietzel GmbH -subject to the exclusion of the rights of the buyer to withdraw from the contract or reduce the purchase price (decrease) - is obliged to carry out rectification, unless Dietzel GmbH, owing to the legal provision, is entitled to refuse to carry out rectification. The buyer must grant Dietzel GmbH a reasonable period for rectification.
7.4. At the discretion of Dietzel GmbH, this rectification can be carried out by elimination of the deficiency (repair) or by means of a replacement; rectification in this sense will be deemed to have failed only after two unsuccessful attempts. Dietzel GmbH must bear all the expenses required for rectification of the deficiency, especially transport, road, labour and material costs, provided these costs do not result from the object of the contract having been moved to a place other than the place of fulfilment.
7.5. If the rectification fails or if Dietzel GmbH is not ready or not in a position to carry out rectification or replacement, or if it is delayed beyond a reasonable duration for reasons for which Dietzel GmbH is responsible, the buyer is entitled to withdraw from the contract or to demand a reduction (decrease) in the purchase price.
7.6. The buyer is only entitled to recourse claims on Dietzel GmbH if the buyer has not made any agreements with his contracting partner going above and beyond the legal rights to damages. No. 7.4 of these general terms and conditions of supply applies accordingly.
8. Liability and damage compensation
8.1. The buyer can file damage compensation claims for a deficiency only if the rectification has failed or Dietzel GmbH has refused to carry out the rectification. Any additional rights owing to deficiencies, especially contractual or extra-contractual claims for damage compensation or for damage that was not effected on the contractual object itself, over and beyond the scope described below, are excluded. Otherwise, no. 7.1 applies accordingly.
8.2. Dietzel GmbH is liable in cases of wilful intent or gross negligence on the part of Dietzel GmbH or its legal representatives or assistants in accordance with the legal provisions. Otherwise, Dietzel GmbH is liable only in accordance with the Product Liability Act, for harm to the life and limb or to health, or owing to culpable infraction of significant contractual responsibilities (cardinal responsibilities). However, the damage compensation entitlement for infraction of significant contractual responsibilities is limited to the contract-typical, foreseeable damages. The liability of Dietzel GmbH is limited to the contract-typical, foreseeable damage even in cases of gross negligence if none of the exception cases described in Sentence 2 apply.
8.3. The liability for damage by the supplied object to legal assets of the buyer, for example, for damage to other property, is completely excluded. These limitations do not apply insofar as there has been wilful intent or gross negligence or there is a liability owing to injury to life and limb or to health.
8.4. The provisions laid down in the previous sections 8.2 and 8.3 also cover (a) damage compensation in addition to the performance and (b) damage compensation instead of performance, no matter for what legal reason, especially owing to deficiencies, the infraction of responsibilities from the contractual obligation or from impermissible actions. They also hold good for the claim for reimbursement of futile expenses. However, the liability for delay is derived from section 5.8 and the liability for impossibility from section 5.9 of these general terms and conditions of supply. Insofar as the liability of Dietzel GmbH is excluded or limited, the exclusion or limitation also applies to the personal liability of the legal representatives or assistants.
8.5. Otherwise, the legal liability of Dietzel GmbH, insofar as it is legally permissible, is limited to the scope that the covered business liability insurance of Dietzel GmbH recognizes and reimburses.
8.6. A reversal of the burden of proof to the disadvantage of the buyer is not bound to the aforementioned provisions.
9. Statutory limitation
9.1. The period of statutory limitation for claims and rights owing to deficiencies in performance - no matter for what legal reason - is 1 year. However, this does not apply in cases of legal deficiencies in immovable property, buildings, materials for buildings, right of recourse of the company or buildings or works whose success consists of the provision of planning or monitoring services for them. The periods specified in the above sentence 2 are subject to a statute of limitation of 3 years.
9.2. The statute of limitation according to no. 9.1 is also applicable to all damage compensation claims against Dietzel GmbH, which are related to a deficiency - regardless of the legal basis of the claim. If there are damage compensation claims of any kind on Dietzel GmbH, which on their part are not bound to a deficiency, the statute of limitation in no. 9.1 applies to them as well.
9.3. The statute of limitation in no. 9.1 and 9.2 applies with the following stipulations:
- in general, the statute of limitation does not apply in case of wilful intent:
- the statute of limitation also does not apply if Dietzel GmbH has guilefully maintained a silence about the deficiency, or has given a guarantee for the quality of the performance. If Dietzel GmbH has guilefully maintained a silence about a deficiency, then the legal statute of limitation applies instead of the periods specified in no. 9.1;
- moreover, the statute of limitation for damage compensation claims additionally does not apply in cases of injury to life and limb or to health, for claims according to the product liability law, in case of a grossly negligent breach of responsibility or in case of a breach of important contractual responsibilities.
10. Reservation of ownership
10.1. The goods supplied by Dietzel GmbH are subject to extended ownership reservation (reserved goods). Dietzel GmbH retains ownership, to the extent legally permitted, of the contractual performance up to fulfilment of all the claims, including the balance claims from current account, which Dietzel GmbH is owed by the buyer now or in future.
10.2. The buyer must handle the reserved goods with care and insure them, valued as new, against damage from fire and water, and theft.
10.3. If the buyer behaves in contravention of the contract, especially if there is delay in payment, Dietzel GmbH is entitled, after a reminder warning, to take back the goods and the other party is obliged to hand them over.
10.4. The execution of the ownership reservation, the taking back of the goods, as well as the distraint of the contractual performance by Dietzel GmbH will be deemed to be withdrawal from the contract, unless otherwise expressly declared by Dietzel GmbH in writing.
10.5. The processing or reshaping of the contracted object by the buyer will always be carried out for Dietzel GmbH. If the contracted objects are processed with other objects not belonging to Dietzel GmbH, Dietzel GmbH acquires co-ownership to the new object in the ratio of the value of the contracted object to that of the other processed objects at the time of processing. The buyer safeguards the co-ownership for Dietzel GmbH.
10.6. If the contracted objects are mixed with other objects not belonging to Dietzel GmbH in an inseparable manner, Dietzel GmbH acquires co-ownership to the new object in the ratio of the value of the contracted object to that of the other mixed objects. The buyer safeguards the co-ownership safe for Dietzel GmbH in these cases as well.
10.7. The buyer may neither pledge the contracted object, nor transfer it as collateral. In case of seizures or confiscation or other disposition by a third party, the buyer must immediately notify Dietzel GmbH of the disposition and make available to it all the information and documents that are required for establishment of its rights. The enforcement officers or third parties must be notified of the ownership of Dietzel GmbH.
10.8. The buyer is entitled to sell the reserved goods in the normal course of business and/or to use them provided he has not delayed any payment. To secure the purchase price debt during the ownership reservation, the buyer hereby transfers to Dietzel GmbH any receivables from the further sale of the reserved goods or arising from any other legal reason (insurance, impermissible actions) with regard to the reserved goods. To be on the safe side, this transfer will be made to the fullest extent. Dietzel GmbH hereby accepts the transfer. If the buyer maintains a current account relationship with the subsequent purchaser, this transfer also covers any positive balance of the buyer in the current account relationship with the third party up to the amount of the purchase price payable.
The buyer is irrevocably empowered to collect the receivables - transferred to Dietzel GmbH - in payment of his invoices. This collection authorization can be revoked at any time if the buyer does not correctly fulfil his payment responsibilities.
Dietzel GmbH is obliged to release the securities at its disposal when the realisable value of these securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is at the discretion of Dietzel GmbH.
11. Industrial property rights
11.1. Dietzel GmbH accepts liability from the violation of industrial property rights and copyright only if it is responsible for the violation of industrial property rights and copyright, and the industrial property rights and copyright do not belong to the buyer or to a company associated with the buyer in which the buyer has a majority stake either directly or indirectly through equity participation or voting rights.
11.2. Liability of Dietzel GmbH is also excluded if the buyer does not inform Dietzel GmbH immediately upon becoming aware of the risks of breach and claimed violations, and leaves the conduct and the manner of conduct of legal disputes fully to the discretion of Dietzel GmbH.
11.3. Moreover, any claims of the buyer from the breach of property rights and/or copyright are also excluded if the breach is brought about by specifications of the buyer, or caused by changes to the contracted object made by the buyer, or by its usage in interaction with another object that has not originated from Dietzel GmbH. The same applies if the contracted object was used in a manner that was not foreseeable for Dietzel GmbH at the time of closing the contract.
11.4. If there has been a violation of the industrial protection rights and/or copyright, Dietzel GmbH is entitled to obtain a licence in the name of the buyer for the contracted object, or to modify the contracted object or replace it by a similar contracted object so that the violation is eliminated and the contractually envisaged purpose is satisfied.
11.5. Otherwise, in general, no. 7, in conjunction with no. 8 and 9 of these general terms and conditions of supply hold good for damage compensation claims.
12. Confidentiality, data protection and duty of allegiance
12.1. The contracting parties pledge to show loyalty towards one another. In particular, they must refrain from luring away individual employees of the other party.
12.2. The contracting parties pledge to keep confidential the data and information of the other contracting party that have become known to them in the framework of the contract, directly or indirectly, regardless of whether verbally, in writing or in any other manner, even after the contract has ended, and to use them only for the purposes of this contract. This also applies to data and information that has not been marked as confidential, or not transmitted confidentially, provided these data and information are to be viewed as being confidential. This does not apply if the data and information, at the time they become known to the other party, are already in the public domain and accessible by any third party, or if these data and information are transmitted by a third party who is not subject to the confidentiality requirement, or if these data and information are to be compulsorily disclosed owing to a law, as well as if these data and information are to be disclosed to the tax consultants of the respective other party for purposes of consultancy.
12.3. The contracting parties will ensure that all employees and/or third parties who are involved in the fulfilment of the contractual performance are also subject to this confidentiality obligation.
12.4. The contracting parties will dispense with filing claims for any damage compensation entitlements which result from unauthorized third parties illegally getting access to the respective data and information of the other party. This does not apply if the access was made possible in the first place by dereliction of responsibility by the other party.
12.5. Legal provisions, especially provisions for data protection, remain unaffected by the above.
12.6. If one party makes available to the other party drawings, technical documents or other technical information on the contracted object before or after contract sign-off, they remain the property of the party making them available. Without the consent of the party making them available, they may only be used for the intended purpose. Without the consent of the party making them available, they may not be used for other purposes, or copied, reproduced, made accessible to third parties or disclosed.
13. Other provisions
13.1. The buyer will ensure that the use of the contracted performance by him or his contract partners does not result in any infraction of public law or any other compelling legal provisions.
If and insofar as the behaviour of the buyer that is contrary to the contract results in claims on Dietzel GmbH, the buyer must indemnify Dietzel GmbH from these claims. In case of filing of claims on Dietzel GmbH that are due to contract-contrary behaviour of the buyer, Dietzel GmbH is entitled to prohibit the use of the contractual performance by the buyer till conclusive clarification.
13.2. The transfer of rights and responsibilities from this contract by the buyer to third parties requires the previous written consent of Dietzel GmbH.
13.3. If unforeseen circumstances in the meaning of no. 5.4 and/or no. 5.5 substantially change the financial meaning of the contract signed with the buyer, or have a substantial influence on the operation of Dietzel GmbH, then the contract signed with the buyer will be adjusted to the changed circumstances following the principle of good faith while taking into consideration the interests of both parties. If a consensus cannot be reached, then Dietzel GmbH can withdraw from the contract, as has been defined in no. 5 of these general terms and conditions of supply. This also applies if an extension of the delivery deadline had first been agreed between Dietzel GmbH and the buyer. The withdrawal must be notified to the buyer without delay.
13.4. Only the laws of the Federal Republic of Germany are applicable to the contract that is based on these general terms and conditions of supply. Provided that the buyer is not a legal entity under public law of a special public fund, the court of jurisdiction is that at the registered office of Dietzel GmbH. Dietzel GmbH can also sue the buyer at the location of the buyer’s registered office.
13.5. Changes and enhancements to the contract that is based on these general terms and conditions of supply as well as to these general terms and conditions of supply themselves must be in writing. This also applies to the provision for the written form.
13.6. In keeping with the provisions of the Federal German Data Protection Act, the buyer’s attention is drawn to the fact that his data will be stored and processed by IT for matters related to the business relationship.
13.7. If individual provisions should be or become inoperative, the remaining provisions will not be affected. Instead of the provision that has become inoperative, a provision will be considered to have been effective right from the beginning, which fulfils the meaning and purpose and whose legal meaning comes closest to the provision that has become inoperative.
If there is a loophole, that provision will be considered to have been agreed right from the beginning, which the contracting parties would have agreed upon in the meaning and purpose of these general terms and conditions of supply, had they noticed that loophole.
If there is nothing to the contrary in the order confirmation, the place of fulfilment is the location of the registered office of Dietzel GmbH.