Terms and Conditions
1. General; Scope
The terms and conditions delineated herein
shall be the sole terms and conditions which apply to all current and future business transactions of Digital
Film Technology GmbH, Darmstadt, Germany and Digital Film Technology LLC, Burbank,
California, United States of America. Unless DFT has approved of such in writing,
any terms or conditions which conflict with, deviate from or modify the terms
and conditions delineated herein shall not be binding on DFT irrespective of
whether DFT had prior notice of such terms or conditions. DFT hereby expressly
objects to any such conflicting, deviating or modified terms or conditions.
2. Contract Formation
2.1 Any offers made by DFT shall be without
obligation and subject to change without notice provided that the parties have
not agreed to a lock-up period.
2.2 The customer is bound to its order for
a period of four weeks after its receipt by DFT. A contract is deemed to exist
upon the customer's receipt of DFT's written confirmation regarding the order
or the effective delivery of the applicable goods to the customer pursuant to
the terms hereof.
2.3 The scope and type of delivery for an
order shall be established solely through DFT's written confirmation relating
to such order. Any errors or omissions in DFT's sales prospectus pricelists,
offer documents or other related documentation may be amended without DFT
incurring any liability for damages or compensation in relation to such errors
3. Payment, Set-Off, Withholding, Contractual penalty
3.1 The purchase price for the contract
shall be that price which is specified by DFT for such contract and shall apply
ex works, exclusive of any value-added tax; if the price is not indicated, the
pricelist then in effect shall apply.
If the sale has occurred through delivery
to a place other than the place of performance (at the customer's request), any
costs incurred for packaging, shipping, freight, customs, or other related
costs will be charged separately. If the customer fails to accept delivery when
tendered by DFT, it must nevertheless make payment.
3.2 If prior to the execution of the order
the cost increase or other circumstances occur that occurred after the order
was confirmed and were not foreseeable, DFT is entitled to adjust the prices
accordingly. The price increase must be within the changed circumstances.
3.3 Unless otherwise stated in DFT's
proposal, invoices from DFT are due upon DFT making the goods available to the
customer and are payable without deductions within 10 days of the issuance
thereof. Upon a default in payment, any overdue amounts will accrue interest at
a rate of 9% above the basic interest rate. DFT reserves its right to assert
any further claims regarding damages resulting from a default. In the case of
agreement to pay in instalments, all debts owed by the customer shall be
immediately due if the customer is at least 10 days in arrears with an instalment
3.4 The customer can offset its payments
only if its counterclaim thereto has been judicially sustained or recognized by
a declaratory judgment. A right to withholding shall only apply to
counterclaims arising specifically from the contract which is the subject of
3.5 DFT will only accept contractual
penalties if they are individually negotiated, put down in writing and signed
by DFT. Contractual penalties in the customer's general terms and conditions
are in no way binding. All contractual penalties include the rights according
to sections 339 subsequent BGB (German Civil Code) with the proviso that the
person who wants to derive rights from a contractual penalty promise must
present and prove all the prerequisites for this. Any contractual penalty can
be offset against other claims for damages. DFT reserves the right to prove
that no or only minor damage was incurred which the contractual penalty incurs
and to reduce the contractual penalty accordingly. If a forfeited contractual
penalty is disproportionately high, it can be reduced by judgment according to
section 343 BGB (German Civil Code). Section 348 HGB (German Commercial Code)
is not applicable.
4.1 The dates for delivery and/or the
making available of the goods are not binding unless a date for such has been
agreed to in writing by DFT.
4.2 DFT is entitled to carry out advance
and/or partial deliveries of the goods.
4.3 In the event that DFT is unable to
deliver or make the goods available to the customer due to events of force
majeure lasting for a period of three months or more, DFT's obligation to
deliver or make the goods available shall be deemed extinguished in its
4.4 DFT shall be entitled to postpone
delivery or availability of the goods for the entire duration of the force
4.5 Events of force majeure shall be deemed
to be any events which are beyond DFT's control, and which make delivery
impossible or unreasonably difficult, including, for example, strikes, lawful
lockouts, war, import or export prohibitions, scarcity of energy supplies or
raw materials, or the
delayed delivery to DFT of goods required
for the performance of its obligations hereunder for reasons beyond DFT's
control. If DFT is released from its obligations as described in Section 4.3
above, the customer shall be entitled to rescind the applicable contract.
Compensation for damages for non-performance can be claimed by the customer
only if the default in delivery is due to DFT's gross negligence or is
intentionally caused by DFT.
5. Transfer of Risk
5.1 The risk of loss or damage to the goods
passes to the buyer as soon as DFT has dispatched the goods from its premises
(i.e., plant, factory, or warehouse) or upon the surrendering of the goods to
the applicable carrier or to the customer itself, as the case may be. The above
shall also apply in the event that DFT serves as the carrier for the goods.
5.2 If the forwarding or collection of the
goods is delayed due to reasons attributable to the customer, the risk of loss
shall be transferred to the customer upon the readiness of the goods for
6. Defective Goods
6.1 The customer must inspect the delivered
goods immediately upon its receipt of such. The customer must notify DFT in
writing of any apparent defects within one week of the goods' receipt. DFT must
be notified of hidden defects in writing within two weeks of their emergence
but in no event later than one year after delivery of such goods.
In the event that the customer fails to
meet the aforementioned notification obligations, the goods shall be deemed to
have been accepted and the rights set forth in Sections 6.2 and 6.3 below shall
not be in effect.
6.2 In the event that the customer has
notified DFT of defects in a timely manner and is thus eligible to make a claim
for re-performance, DFT shall have the right, at its own cost, either to remedy
the defect or to redeliver conforming goods.
However, the foregoing shall not apply in the
event of vandalism, misuse, incorrect operation, improper storage or soiling,
normal wear and tear of spare parts, changes to the goods or improper repairs
by the customer or third parties without our prior written consent or other
defects that cannot be attributed to DFT.
6.3 If DFT finally fails to remedy a defect
or if DFT is otherwise unable to accomplish its re-performance obligation or
fails to do so within a time period reasonably set forth by the customer, the
customer shall be entitled to reduce the purchase price under the contract or
to cancel the contract. Instead of seeking performance, the customer can make a
claim for damages or for compensation for expenses. However, if the customer
elects to rescind the contract it shall have no right to make any claim for
damages with respect to the defective goods.
6.4 Insignificant, reasonable deviations in
the dimensions and designs, especially in the case of repeat orders, do not
entitle to complaints, unless the observance of dimensions or other specific
specifications has been expressly agreed. Technical improvements and necessary
technical changes are also deemed to be in accordance with the contract,
provided they do not represent a deterioration in value.
6.5 Provided that DFT has not acted fraudulently,
any claims of the customer regarding the goods shall become void and
unenforceable one year after delivery of the applicable goods.
In accordance with the statutory provisions
of the German law, DFT is fully liable for damage to life, limb or health based
on an intentional or negligent breach of duty as well as for other damage based
on an intentional or grossly negligent breach of duty and malice. In addition,
DFT is fully liable for damage that is covered by liability under mandatory
statutory provisions of the German law, such as the German Product Liability
Act, as well as in the event of assumption of guarantees.
7.2 For damage that is not covered by
Section 7.1 and which are caused by simple or slight negligence, DFT is liable insofar
as this negligence relates to the breach of contractual obligations the
fulfillment of which enables the proper execution of the contract in the first
place and compliance with which the customer regularly trusts and may rely
(so-called cardinal obligations). DFT’s liability is limited to the typical,
7.3 DFT shall not be liable for
consequential damages and unforeseen damages (including consequential damages
resulting from defective goods) as well as loss of profits in the event it has
acted with simple negligence.
7.4 DFT shall be subject to no liability
beyond that which is delineated in this Section 7.1 to 7.3.
7.5 To the extent that DFT's liability is
excluded or limited, such exclusion or limitation shall apply to any persons or entities employed by DFT in
the performance of its contractual obligations.
7.6 The limitations of liability delineated
herein shall not apply to any legally prescribed strict liability, in
particular any such strict liability arising from laws regarding guarantees or
8. Retention of Title
8.1 Ownership of the delivered goods shall
remain with DFT until it has received full payment for such goods. Title to the
goods shall first pass to the customer upon DFT's receipt of all payments which
are due under the current applicable contract.
8.2 Prior to obtaining title to the goods,
the customer is not entitled to pledge, to assign by way of security, to
process or to alter the goods. The customer is, however, authorized to sell the
goods to third parties in the ordinary course of business unless a non-assignability
agreement regarding the consideration exists between the customer and the third
party. If a third party acquires an interest in the goods through a resale to
such party, the customer agrees to assign to DFT all of its correlating rights
and claims against such third party. DFT hereby accepts such assignment.
However, the customer is not authorized to make extraordinary dispositions such
as pledging and security transfers to third parties.
8.3 Any combination, amalgamation and/or
processing of the goods (sections 947, 948 and 950 BGB (German Civil Code))
shall be deemed to have been made on behalf of DFT but without obliging DFT.
DFT shall acquire title to the resulting product in the ratio of the invoiced
value of the goods and services provided by DFT to the total invoiced value of
the resulting product. If the goods have been re-sold to a third party, the
assignment of rights and claims performed in accordance with Section 8.2 above
shall be valid solely up to the amount of the invoiced value of goods and
services provided by DFT.
8.4 Upon a default in
payment by the customer, DFT has the right to disclose to any applicable third
party that it holds an interest in the goods pursuant to the assignment
delineated above and to assert any of its claims directly. The customer is obligated to provide and
deliver to DFT all documentation required for the assertion of such claims. The
customer must also make available to DFT, completely and in a timely fashion,
all information about any events that might affect the obligations described
9. Tools, Patterns, Samples, Confidentiality
Any tools, patterns, samples, models,
profiles, drawings, standard specification sheets, printing templates and
materials provided by DFT or made for the Customer, as well as any materials
derived there from, shall not be made available to any third party nor used for
any other purpose than those contractually agreed except with the prior written
consent of DFT. Such materials shall be protected against unauthorized access or
Subject to any further rights DFT may
demand that such materials be returned if the Customer breaches these duties.
9.2 Material and information provided by
DFT remain the property of DFT and are to be stored, labelled as property of
DFT and administered separately at no cost to DFT.
Their use is limited to the orders of the
Customer only. The Customer shall supply replacements in the event of reduction
of value or loss, for which he is responsible, even in the event of simple
9.3 The Customer shall treat as
confidential the knowledge and findings, documents, terms of reference,
business processes or other information that he receives from or about DFT in
the context of performing the contract, as well as the conclusion of the
contract and any results, with regard to third parties - and shall keep the
same confidential beyond the term of the contract – for as long as and insofar
as such information has not become publicly known by legal means or DFT has not
consented in writing to its transfer in the individual case.
The Customer shall make confidential
information available only to those employees who need the information for the fulfilment
of their duties and shall ensure that such employees are also subject to a duty
to treat such information as confidential. The Customer shall use this
information exclusively for the purpose of performing the contract. Insofar as
the Customer uses a third party as subcontractor, such third party shall agree
to such terms in writing.
Provisions; Reservation Clause; Jurisdiction; Governing Law
10.1 DFT shall not be obligated to fulfil
the contract if such fulfilment is prevented by any impediments arising out of
national or international foreign trade or customs requirements or any
embargoes or other sanctions.
10.2 Insofar as the provisions of these
Terms and Conditions do not regulate certain matters, relevant statutory
provisions shall apply.
10.3 The parties hereto agree that the
exclusive jurisdiction for any transaction and/or contract between the parties
is Darmstadt, Germany.
10.4 The relationship of the parties hereto
shall be exclusively governed by and in all respects construed in accordance
with the laws of the Federal Republic of Germany with no application whatsoever
of the United Nations Law on the Sale of Goods of 11th of April 1980.
Digital Film Technology GmbH, Darmstadt, Germany - General Terms and Conditions (10/05/2023)