Delivery period and delay
- The delivery period shall be agreed on an individual basis.
- Agreed delivery periods and deadlines shall commence and we shall comply with them, once all technical queries are clarified and any obligations by the Customer to cooperate, particularly the timely receipt of all items, documents, approvals, inspections, releases and compliance with agreed payment conditions, are met. The delivery period shall be extended appropriately if these conditions have not been properly met, and, in particular, have not been met on time. Any delivery dates shall be postponed accordingly. This shall not apply if Dolphin is responsible for the delay. In case of a failure to comply with the delivery deadlines or dates due to acts of force majeure and other disruptions outside of Dolphin’s control, such as war, terrorist attacks, pandemic and strikes, including strikes affecting suppliers, the agreed delivery periods shall be extended accordingly. Delivery dates shall be postponed accordingly.
- In the event of Dolphin being unable to meet binding delivery periods and dates for reasons outside of its scope of responsibility (unavailability of services/Goods), Dolphin shall notify the Customer of such fact immediately and at the same time announce the expected new delivery periods. If the service/Goods remain unavailable even within the new delivery period, Dolphin may withdraw from the contract, in whole or part thereof, and reimburse any remuneration already paid by the Customer with undue delay. Within this meaning, unavailability of the service/Goods shall be, in particular, inaccurate, particularly late, deliveries to Dolphin made by Dolphin suppliers, unless a congruent covering transaction has been concluded with such supplier. Such transaction shall be deemed to have occurred if Dolphin has a supply contract with the Customer on the date the contract is concluded, which under objective inspection is designed to ensure that if everything proceeds smoothly, DOLPHIN will able to supply Goods and services to the Customer with the same level of assurance as has been contractually agreed. This shall not affect any further claims of the parties.
- Partial deliveries are permissible, unless such deliveries – taking DOLPHIN´s interest into account - are deemed unreasonable for the Customer.
- DOLPHIN reserves the right of excess or short delivery of up to 15%.
- In the event of the Customer violating obligations to cooperate, DOLPHIN may give preference to other orders by third parties and extend the delivery period or date accordingly. Notwithstanding any further claims, DOLPHIN may assert a compensation claim for damages thus incurred, including any additional costs, unless the Customer is not responsible for the violation of the obligations to cooperate.
- For any delay the statutory provisions shall apply. In any case, however, the Customer shall issue a warning. Compensation of any loss of profit and damages resulting from interruption of business by DOLPHIN shall be excluded. In the event of slight negligence, compensation for damages shall be limited to additional freight costs, upgrade costs, as well as additional costs for covering purchases if the period of grace expires without the situation being rectified or the Customer is no longer interested in the delivery.
Delivery, risk transfer, Goods approval, delay of Goods acceptance
- Unless stated otherwise in the order confirmation, goods shall be delivered ex works (EXW in accordance with Incoterms 2020) to a destination stated in the offer or order confirmation. The Goods may be dispatched to a different destination at the Customer‘s request and cost (Sale by Dispatch). Unless otherwise agreed, DOLPHIN may determine the type of dispatch (particularly transport companies, transport path, packaging).
- The risk of accidental destruction and deterioration of the Goods shall be transferred to the Customer no later than as soon as the Goods have been handed over to the person performing the transport or have left DOLPHIN‘s plant / warehouse for the purpose of dispatch. If an acceptance of the Goods has been agreed, risk shall transfer at the time of the acceptance. Notwithstanding, the statutory provisions applicable to works and services shall also apply accordingly to the agreed acceptance of Goods. Delivery or acceptance shall be deemed to have taken place if the Customer is in default of acceptance.
- In the event of the Customer being delayed with the Goods acceptance, failing to cooperate, or if delivery by DOLPHIN is delayed for other reasons, DOLPHIN shall store the Goods at the risk and cost of the Customer. In the event of the Goods acceptance being delayed, DOLPHIN may request compensation for any damages incurred as a result, unless the Customer is not responsible for the delay in accepting the Goods, as well as compensation for additional costs (e.g., warehousing costs). The warehousing costs shall be charged at a lump sum of 0.5% of the net price of the Goods included in the delivery (delivery value) per calendar week started. This shall not affect DOLPHIN‘s right to prove that higher warehousing costs have been incurred as well as the legal claims and rights (particularly for the reimbursement for additional costs, reasonable compensation, termination). However, the lump sum shall be offset against any further claims. The Customer may provide proof that DOLPHIN has not incurred any damages, or damages that are significantly lower than the above lump sum. The obligation to reimburse additional costs and lump sum warehousing costs shall also apply if the Customer violates obligations to cooperate of the delivery is delayed for other reasons, unless the Customer is not responsible for the violation of the obligations to cooperate or the other reasons. Further claims shall remain unaffected, even in the event of violations of obligations to cooperate and delays for other reasons.
Customer‘s claims for defects
- The statutory provisions apply to the Customer‘s claims for defects, unless stated otherwise below.
- The Customer may claim for a defect provided that the Customer has checked the Goods delivered on receipt, insofar as reasonable through test processing or use, and has notified DOLPHIN in writing of any apparent defects immediately upon receipt. Hidden defects shall be reported to DOLPHIN in writing as soon as they are discovered. The Customer shall provide DOLPHIN with a written description of the defects in its report.
- If the Goods delivered are defective, DOLPHIN may choose to subsequently repair them or deliver non-defective Goods. The defective Goods shall be returned to DOLPHIN immediately upon request and at the Customer ‘s cost for testing purposes. DOLPHIN shall pay the costs for the supplementary performance, particularly costs for transport, travel, labour, and materials. If replacements are delivered, the Customer shall return the defective Goods to DOLPHIN in accordance with the statutory provisions. They shall become the property of DOLPHIN.
- If the supplementary performance has failed, or a period of grace to be granted by the Customer for the supplementary performance has passed without the supplementary performance being executed, and/or if such period of grace does not have to be granted in accordance with the statutory provisions, the Customer may choose to withdraw from the contract or reduce the purchase price, notwithstanding any compensation claims for damages or expenses. The same shall apply of the supplementary performance is unreasonable for the Customer or is delayed past a reasonable period of grace for reasons outside DOLPHIN ‘s scope of control. However, the right to withdraw from the contract shall not exist, in particular, in the event of an insignificant defect.
- Claims for defect shall not exist if the defect is the result of a violation of operating, maintenance, and installation instructions, unsuitable or unprofessional use, or use that exceeds the requested and tested use, insufficient validation by the Customer, storage, or careless handling and natural wear and tear, as well as interference with the Goods by the Customer or third parties.
- The Customer ‘s compensation claims for expenses instead of damages instead of the fulfilment of the contractual obligation shall be excluded, unless a reasonable third party would have also incurred such expenses.
- Supplies and services (i.e., the fulfilment of contracts) are subject to the fulfilment not being restricted by national or international regulations, particularly export control regulations and embargos or other restrictions.
- The parties shall provide any information and documents required for export/inland transport/ import accurately, complete, on time and free of charge.
- Delays caused by export controls or approval processes shall take precedence over the specified deadlines and dates, unless DOLPHIN is responsible for them.
- In the event of obtaining licenses required for certain items being impossible, the contract shall be deemed not to have been concluded for the affected items. This provision shall not be subject to the validity or legal enforceability of the ruling on the rejection of the export or transfer. In such case, failure to obtain licenses or non-compliance with deadlines shall not be regarded as grounds for compensation claims, unless such failure or non-compliance is caused by an action of one of the parties.
- The Customer shall undertake to DOLPHIN to refrain from trading the Goods delivered by MALE to a customer in cases where such trading violates the applicable export control regulations. In each case of violation of the export control regulations, DOLPHIN may terminate, or withdraw from, the contract and the Customer shall hold DOLPHIN harmless of all third-party compensation claims raised on the grounds of such violations of the export control regulations and compensate DOLPHIN for all intangible and tangible expenses and losses, particularly fines and punitive damages.