General Terms and Conditions of Sale and Delivery

Company t-s-i.de Misch- und Dosiertechnik GmbH
Georg-Fleischer-Straße 6
66914 Waldmohr
Germany

 

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Applicable to business transactions with companies, legal entities under public law and special funds under public law.

ARTICLE 1 General – Applicability

(1) Our Terms of Sale and Payment to which the customer declared his agreement at the time of placement of the order shall apply exclusively, including to future business transactions where they have not been referred to specifically but where they have been sent to the ordering party in the event of a previous order confirmed by us. Even where the order is placed in deviation from our Terms of Delivery and Payment, our Terms of Delivery and Payment shall apply, even when we do not state our disagreement. Deviations shall therefore be valid only when they have been expressly accepted by us in writing.

(2) In individual cases, individual agreements with the customer (including ancillary agreements, additions and changes) have priority over these General Terms and Conditions of Sale and Delivery. For the content of such agreements, subject to the contrary evidence, a written contract or our written confirmation shall prevail.

(3) Our terms and conditions only apply to companies, legal entities governed by public law and public funds.

(4) Our terms and conditions also apply to all future deliveries and services provided to the customer.

(5) We are entitled to transfer the claims from our business relationships.

ARTICLE 2 Offers and Orders; Rights to Documents and Know-how

(1) Our offers are not binding, and are subject to the ability to supply. Quotations and provisional offers are not binding.

(2) If the order comes under the definition of an offering as per § 145 BGB, we may accept the order within a four-week period.

(3) As regards the scope of goods and services supplied, our written confirmation of the order shall be authoritative.

(4) We reserve the copyright and ownership rights to illustrations, drawings, calculations and other documents; they may not be made available to third parties. This particularly plies to confidential written documents. Conveyance of these documents to third parties is subject to our express written approval.

(5) If the order placed with us involves the production of software, the customer shall only be granted the user rights expressly stated in the contract. Further rights, particularly regarding the issuance of licenses, sub-licenses, other user rights and independent use etc., including all source code rights, are exclusively reserved for us and are subject to a licensing agreement for purposes of transfer to the customer. Furthermore, the assignment of software and source codes etc. for testing purposes at the customer’s premises does not grant the customer any rights to this software.

(6) Changes in design or form, as well as amendments to the scope of the order, are subject to alteration during the supply period, provided that the changes or deviations undertaken in our interests are deemed reasonable by the customer. If we use symbols or numbers to designate the order or ordered item, no rights may subsequently arise with regard to the actual ordered item or scope of delivery.

ARTICLE 3 Prices – Terms of Payment

(1) If not otherwise stated by the contract note, our prices apply ex works excluding packaging; the latter shall be invoiced as a separate item and shall not be taken back. Prices are quoted exclusive of legally applicable VAT. The latter shall be separately itemized at the current rate on the date of invoicing.

(2) If no other payment arrangements have been agreed, payments shall be due as follows: 50% upon placing the order, 50% when goods are ready for delivery, strictly net without rebate.

(3) A set-off by the purchaser against counterclaims is excluded, unless the counterclaims are undisputed or have been established as final and absolute. The assertion of a right of retention by the purchaser is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or have been established as final and absolute.

(4) Checks and bills of acceptance shall only be accepted subject to special agreement. Discount and bank charges shall be borne by the customer. Payments shall be deemed to be discharged on the date at which we may encase the invoiced amount, without incurring losses.

(5) In the event of the customer defaulting on payments, we shall charge the legally applicable interest on arrears (§ 288 section 2 BGB, i.e. 9% above the basic rate of interest). We reserve the right to claim further compensation for arrears.

(6) Should the purchaser be in arrears with any payment obligations to us, all existing claims shall become immediately due. Alternatively, we are in this case entitled to withdraw from the contract and / or to demand the goods based on the retention of title. The request for withdrawal does not at the same time include the explanation of the resignation; we are rather entitled to demand only the goods and to reserve the right of withdrawal.

(7) The assertion of a right of retention by the buyer is excluded, unless it is based on the same contractual relationship and is undisputed or legally established.

ARTICLE 4 Delivery – Terms of Delivery

(1) Delivery dates and terms shall only be binding if an actual delivery date or an actual term has been agreed in writing. We reserve the right to due and punctual self-delivery.

(2) Terms of delivery shall come into effect, and delivery dates shall become binding, once all details of fulfilment have been clarified, once all technical issues have been addressed and once both parties have agreed to all contractual conditions.

(3) If goods cannot be dispatched for reasons beyond our control, readiness of the goods shall be taken as fulfilment of the contract.

(4) In the event of force majeure or other unforeseeable, exceptional and fortuitouscircumstances – e.g. material and energy shortages, operational disruptions, labour disputes, lockout, scarcity of transportation facilities, government intervention, etc. – even if these occur on the initial supplier’s premises, the term of delivery shall be extended proportionately if we are hampered in the punctual fulfilment of our obligation. If the a forementioned circumstances render delivery or service provision impossible or unreasonably difficult, we shall be released from our obligation to deliver. If the delay lasts longer than three months, the customer shall be entitled to withdraw from the contract. We may only invoke the aforementioned circumstances if we notify the customer immediately.

(5) We shall be entitled to make partial deliveries subject to these being acceptable to the customer, as well as larger or smaller deliveries of a commercially standard volume.

(6) If we exceed an agreed term of delivery or a term of delivery that has been extended due to the aforementioned circumstances, despite an extension granted by the customer, through our own fault, the customer shall be entitled to withdraw from the contract.

(7) If the shipment is postponed upon the customer’s request, the customer shall be invoiced – starting one month following notification of readiness for shipment – for costs incurred by storage of goods on our premises, to the tune of at least 0.5% of the invoice amount for every month (max. 5% of order value). After the expiry of an appropriately set deadline, we shall be entitled to source the goods elsewhere and deliver them to the customer with an appropriately extended lead time.

ARTICLE 5 Transfer of Liability

(1) If the goods are sent to the customer at the latter’s request, liability for accidental ruin or damage of goods shall be transferred to the customer, even in the event of partial deliveries. This will occur upon shipment of goods to the forwarding agent, at the very latest upon leaving the factory or storage facility, regardless of whether the goods are shipped from the place of performance and regardless of who shall bear freight charges.

(2) If, despite being ready for dispatch, the shipment or acceptance is delayed for through no fault of our own, liability shall then be transferred to the customer upon the latter being notified of readiness for dispatch.

(3) Barring specific instructions, the route and means of transport shall be determined by us without responsibility for the cheapest and quickest shipping method. Any insurance of the goods to be dispatched will be effected by us upon request and to the account of the customer only.

ARTICLE 6 Delayed Acceptance

(1) If the customer fails to accept the delivered goods within usual business hours or following notification, despite the goods being procured in accordance with the contract, our contracted carriers may – at their own discretion – unload the goods at the customer’s premises or at a proximal location, or return them to us, at the customer’s risk and expense.

(2) If the customer fails to accept the delivered goods within an extended deadline carrying a rejection penalty, we shall then be entitled to either withdraw from the contract or proceed with a private sale. Ensuing additional costs shall be borne by the customer.

ARTICLE 7 Defect Inspection – Liability for Defects – Expiry

(1) Claims for incomplete or improper delivery or complaints arising from perceptible defects in the delivered item must be reported to us in writing immediately before use or processing, and no later than 8 days following receipt of the item. Exact details of each defect must be provided. Failure to do so shall imply that the goods have been accepted. Perceptible defects must be reported immediately. The customer’s obligation to inspect the goods applies to the entire consignment.

(2) If the goods show no immediately perceptible serious defects or a visible deviation from their agreed composition, they must be accepted and appropriately stored. Return of the goods shall be subject to our express and prior agreement. We shall be given the opportunity to inspect the goods in question.

(3) Our liability for defects and derelictions of duty shall be restricted to a maximum period of 12 months following the transfer of liability to the customer (1 shift operation). Legal regulations governing consumer goods procurement shall remain unaffected. Our liability shall initially be restricted to the obligation either to repair the defective item or to supply the customer with a defect-free item subject to return of the disputed item. Our liability for defects in one of our own products (installation or repair; delivery of equipment at the customer’s request or specifications) shall be restricted to a period of 12 months as of readiness for acceptance of the ordered item. With regard to direct costs arising from rework or replacement, and subject to the claim being justified, the supplier shall only be liable for the costs of the replacement part but shall not bear any costs incurred through journeying or working time, the latter being borne by the customer.

(4) If an agreement has been concluded with the customer to provide the latter’s staff with support or training in the operation and maintenance of equipment supplied by us, our liability shall be restricted to supplied parts only.

(5) If an item supplied by us is delivered to a different location than the place of performance, we shall not be liable for the ensuing additional transportation, routing or labour costs.

(6) We shall not be liable for damage or defects arising from the following:

  • inappropriate and improper use
  • defective assembly, repair, rework or commissioning by the customer or a third party
  • if the customer fails to comply with maintenance and operating instructions applying to the supplied item
  • in the event of natural wear or effects of climate; this particularly applies to all types of seal and other parts coming into contact with the material to be processed.

(7) In order for defects to be eliminated, the customer shall grant us the required time and opportunity. For as long as these are denied to us, we shall be released from liability for defects. For the supply or installation of equipment, the customer shall ensure that spatial, technical and other arrangements regarding installation and connection are in place by the agreed delivery dates, enabling us to prepare the goods for operation.

(8) If replacement or rework proves impossible or unsuccessful, or if replacement or rework is denied by us in bad faith or unjustifiably postponed, the customer shall be entitled either to withdraw from the contract or request a price rebate.

(9) If the defect claim is found to be unjustified upon inspection, we shall be entitled not only to invoice dispatch costs, but also appropriate compensation for the inspection of disputed goods.

ARTICLE 8 Reservation of Proprietary Rights

(1) We reserve proprietary rights to all supplied items up until the complete fulfilment of all commitments arising from our business transactions, and up until the settlement of all current account debts due by the customer. The issuance of account statements or the acceptance of outstanding balances shall in no way affect individual claims or the reservation of proprietary rights.

(2) Supplied goods subject to reservation of proprietary rights may be resold by retailers and manufacturers in the normal course of business, subject to their revocability. Goods may only be assigned subject to cash payment or reservation of proprietary rights.

(3) Pledges, mortgages and other provisions that might jeopardize the reservation of proprietary rights may not be undertaken by the customer. In the event of default, we shall be entitled to withdraw from the contract and demand the return of reserved goods. We shall be further entitled to remove the reserved goods from the customer’s stores and take immediate possession of them.

(4) If the customer disposes of the reserved goods, he shall thereby transfer to us all receivables due by his assignee, along with all incidental rights, until the complete discharge of all liabilities binding him to us. If goods supplied by us, which are subject to the reservation of proprietary rights, are sold by the customer together with other goods for a lump sum, the liability arising from disposal shall only amount to the value of the supplied goods stipulated by us in our invoice (including VAT).

(5) The customer shall be entitled to collect payment for liabilities assigned to us for as long as he fulfils his contractual payment obligations towards us. If the customer defaults on payment, we shall be entitled to collect the aforementioned receivables on our own behalf and for this purpose be granted access to the customer’s statements and other related accounting documents. At our request, the customer shall present us with a detailed statement of receivables assigned to us, and shall inform liable third parties of any assignment to us. If incoming amounts exceed the receivables, they shall be transferred to the customer.

(6) If items supplied by us are blended with other goods or processed by the customer, we shall be entitled to claim joint ownership of the new item resulting from blending or processing, in proportion to the value of the reserved goods compared with the value of the other blended or processed item at the time of blending or processing. The customer shall store the new item for us free of charge.

(7) Before a third party takes possession of reserved goods or of liabilities transferred to us, the customer shall immediately notify us by enclosing the distress documents. Any intervention costs shall be borne by the customer.

(8) Provided that the value of the receivables assigned to us under the aforementioned terms exceeds our claims by more than 20%, we shall release securities to the customer on demand.

(9) For the assertion of the rights arising from the reserved property, no withdrawal from the contract is necessary, unless the debitor is a consumer.

ARTICLE 9 Damage Compensation

(1) Under current legislation, we shall be totally liable for damage covered by one of our guarantees (assurance).

(2) We shall be further liable for damages resulting from fatalities, injuries or adverse effects on health unless we are not liable for dereliction of duty, as well as for damage arising from our dereliction of duty, unless our dereliction of duty was committed neither intentionally nor owing to gross negligence. Under product liability law, our liability remains unaffected subject to its compelling nature.

(3) We shall not be liable for damage compensation due to defects or other derelictions of duty. This excludes damage that is ascribable to the culpable dereliction of essential contractual duties. In such cases, our liability shall be restricted to damages for which, at the time of signing the contract, we made provision as a potential result of dereliction of duty, or which we should have made provision for in the light of circumstances we were or should have been aware of.

(4) In the event of damage goods, our liability for defects or other derelictions of duty in accordance with the aforementioned section 3 shall be restricted to the amount of our liability insurance cover. In the event of financial loss, it shall be restricted to loss of earnings from use of the supplied goods.

(5) Dereliction of duty committed by our legal representatives or assistants shall be considered tantamount to dereliction of duty committed by us.

(6) Any legal rights of withdrawal shall be restricted by the aforementioned regulations.

ARTICLE 10 Jurisdiction – Place of Performance – Severability Clause – Applicable Legislation

(1) The court of jurisdiction shall be Waldmohr (Germany) where the company has its official address.

(2) Our head office shall nevertheless remain the place of jurisdiction, provided that the customer has registered after the conclusion of the contract his head office or usual place of residence outside the applicable scope of the code of civil procedure, or provided that his head office or usual place of residence is not known to us at the time of our claims being lodged.

(3) Unless otherwise stated by the contract note, our head office shall be the place of performance.

(4) For all legal transactions between us and the customer, legislation of the Federal Republic of Germany shall apply, without possibility of recourse to the CISG (Convention on Contracts for the International Sale of Goods).

(5) With regard to data processing, we refer to our privacy statement.

(6) Should any provision of these general terms and conditions of sale and delivery be or become ineffective, this shall not affect the validity of the remaining provisions. In this case, the parties are obliged in the course of the individual agreement to make a provision that comes as close as possible to the economic purpose of the invalid provision.