Terms of Sale, Delivery, Work Supply and Payment of TZT Wilbring GmbH, Ahaus-Ottenstein
§ 1 General
These Terms and Conditions shall apply to any and all transactions with business enterprises within the meaning of section 310 (1) BGB (German Civil Code)
Any deviating terms and conditions shall be excluded unless the Seller confirms them in writing.
§ 2 Offers, Prices, Delivery Periods
1. Offers shall be subject to change without notice.
2. The details, drawings, illustrations and specifications contained in brochures, catalogues, price lists or documents that are part of an offer, are approximate values to the extent that is customary within the industry, unless our order acknowledgement expressly confirms them as binding. The Seller reserves the right to make design changes or other changes to the delivery item insofar as such changes are reasonable or acceptable.
3. If a material change occurs in certain cost factors – wages, materials, packing material or freight – the agreed price can be reasonably adjusted in accordance with the impact of the decisive cost factors and by a maximum of 2%. The Buyer shall be entitled to cancel the contract if the Seller holds on to the price increase despite the Buyer’s announcement of its intention to cancel the contract.
4. Delivery times shall be subject to the Seller receiving correct and timely deliveries from its suppliers. If a definite delivery date and/or delivery period has been agreed, which the Seller has confirmed in writing, Seller’s claim to delivery shall not become due and/or the delivery period shall not start before the technical details of the respective order have been clarified. The delivery period shall be deemed met if the goods have left the warehouse/works at the stipulated time or – in the event that dispatch is not possible – the Seller has notified the Buyer of readiness for dispatch. In the event of a delay in delivery, a reasonable extension of time shall be granted, which should be at least be ¼ of the delivery period stipulated, and in any case 6 working days.
5. If the Seller provides samples and specimens, this shall not in itself imply a warranty of their properties.
6. Packaging costs shall be borne by the Buyer.
§ 3 Delivery, Delay and Impossibility of Delivery
1. Seller’s loading site shall be the place of performance for the Seller’s shipments. If the goods are delivered to the Buyer, then transportation shall be at Buyer’s risk. If instructions are changed, the Buyer shall bear the costs.
2. Insurance is only taken out if requested in writing and at the Buyer’s expense.
3. “Free delivery” shall refer to delivery alone, unloading shall not be included. Unloading shall be promptly and properly effected by the Buyer.
4. Partial deliveries shall be allowed to a reasonable extent.
5. If the Buyer has no trade credit insurance, the Seller need only start manufacture after equivalent security has been provided; all the dates agreed shall be postponed accordingly.
6. Any penalty clause shall only be recognised if it has been individually negotiated with the Seller.
7. In the event that the Seller is delayed in its delivery obligations or that it is impossible for the Seller to perform its delivery obligations for reasons beyond its control, the following shall apply:
7.1 If the delay or the impossibility of delivery are due to gross negligence or wilful intent on the part of the Seller or one of its officers, the Seller shall be held liable for the loss to the extent that it had been foreseeable
7.2 If the delay or the impossibility are due to ordinary negligence, damages shall be limited to the value of the shipment.
7.3 Any claim to consequential damages shall be excluded unless such damage is insured or is typically insured.
§ 4 Payment
1. In the case of cash purchases, the goods shall be paid strictly net upon receipt.
2. A special written agreement is required for sale on deferred terms
3. If a cash discount has been agreed, the discount can only deducted if no other accounts payable by the Buyer have been outstanding for more than 30 days. Only the value of the goods, freight excluded, can be subject to a discount; any unloading and/or installation costs or services are not discountable. If part deliveries and part payments have been agreed, there shall be no entitlement to a discount unless the last partial delivery is paid within the agreed cash discount period.
4. The settlement of invoices by cheque or bill of exchange shall be effected by way of provisional performance and only if agreed upon and if the cheques or bills are discountable; discount charges shall be charged from the due date, and in any case from the date the bill of exchange is issued. No guarantee is given for the due presentation of the bill or protesting of the bill. Bank discounts, bill of exchange charges and costs shall be paid by the Buyer.
5. The Seller shall be entitled to demand from the Buyer – as a flat charge without special proof and starting from the due date – interest in the amount of the credit charges to be paid by the Seller itself and at least at a rate of 3 percentage points above the base rate. It will be up to the Buyer to prove that the loss caused by interest was lower. This shall not affect the entitlement to claim damages for delay under the BGB (German Civil Code).
6. In the case of imminent illiquidity – section 18 (2) (German) Insolvency Statute – the Seller shall be entitled to effect further deliveries only against prepayment, to call due all accounts receivable – even if deferred – and demand cash payment or security against the return of bills it has accepted for payment. In the event of imminent illiquidity, the Seller can demand, up to the time of its performance, that appropriate security is provided within a reasonable period of time, or can insist on performance against concurrent valuable consideration. A material impairment of the financial situation shall be deemed to exist if Buyer’s economic situation has turned so difficult that there is justified cause to presume that the Buyer will be unable to fulfil a material part of its obligations. Should the Buyer fail to comply with Seller’s justified demand or fail to do so in time, the Seller shall be entitled to cancel the contract or claim damages for non-performance.
7. The Buyer shall examine invoices and balance notifications as to their correctness and completeness. Seller’s invoices shall be deemed accepted if no objection has been raised in writing within 30 days from the invoice date. The same shall apply to balance notifications. If the Buyer is not a merchant, the Seller shall inform the Buyer accordingly on each invoice or balance notification.
8. The Buyer waives the right to claim a right of retention for other previous or current transactions under the business relationship; if the Buyer is a merchant within the meaning of the HGB (German Commercial Code), the offsetting of counterclaims shall only be permitted if these are undisputed or have become res judicata.
9. A payment shall only be deemed to have been made in time if it reaches the Seller’s bank account without reservation within the stipulated time limit.
§ 5 Passing of Risk, Notification of Defects/Complaints, Guarantees and Liability
1. The risk shall pass to the Buyer upon the goods leaving the Seller’s works. If the goods are ready for despatch and despatch is delayed or if the shipment and/or acceptance is delayed for reasons for which the Buyer is responsible, the risk shall pass to the Buyer upon receipt of the notification of readiness for dispatch.
2. In the case of work on products that were manufactured externally, we provide no warranty with regard to existing inherent defects of the item.
3. The Buyer’s obligations acc. to section 377 HGB (German Commercial Code) shall apply, provided that the Buyer, if a merchant, examines the goods without delay and provides written notification of any defects, shortfall quantities or wrong deliveries; the complaint shall in any case be made in writing to the Seller before the goods are processed or installed/incorporated; any transport damage and shortfall quantities – even in the case of packaged goods – shall be notified promptly upon handover by telephone and shall be confirmed in writing. There shall be no claim to damages if this obligation is not observed.
If the goods are transported by rail, on vehicles for short-distance or long-distance hauling, or by any other means of transport, the Buyer shall see to the formalities required by the carrier – e.g. the official recording of facts by the railway company. Breakage and shrinkage, to the extent that they are usual in the business, cannot be complained of.
4. If a justified complaint is raised in time, the Seller can, at its option, either repair the product or supply a replacement. Should repair or replacement fail, or should they not be provided within a reasonable period of time or should they be refused, the Buyer can make use of its statutory rights, namely its right to a price reduction or cancellation of contract. The assumption of a guarantee within the meaning of section 276(1) sentence (1) BGB or section 443 BGB (Civil Code) shall be expressly designated as such. Any reference to DIN standards shall in principle signify the precise designation of the product only and shall not create a guarantee by the Seller.
5. Buyer’s warranty claims shall be time-barred 12 months from the date of the passing of risk; this shall not apply to claims under construction contracts, to compensation for injury to life, limb and health and in the event of fraudulent conduct of the Seller.
6. Seller’s liability for damages shall be as follows:
6.1 The Buyer shall have no claim for damages against the Seller and Seller’s vicarious agents; this shall not apply to damages for injury to life, limb and health. Such exclusion of liability shall not apply if the damage is the result of a wilful or grossly negligent violation of duty on the part of the Seller or any of the Seller’s legal representatives or vicarious agents.
6.2 The exclusion of liability shall not apply if the damage results from a violation of essential duties by the Seller. In that case, the Seller shall be liable for damages only in the amount that was foreseeable as a possible consequence of the breach of duty at the time of the contract negotiations or the time the contract was signed, or were foreseeable in due consideration of the circumstances which the Seller knew or must have known.
7. Claims under the law on product liability shall remain unaffected by this.
8. The Seller shall in no case recognise the exclusion in section 341 sentence (3) BGB (Civil Code)
§ 6 Reservation of Title, Assignments
1. Title to the goods supplied shall remain with the Seller until the purchase price has been paid and all the claims under the business relationship as well as any future claims arising in connection with the purchased item have been settled. The allocation of individual claims to a current account or a balance that is struck and is recognised shall not nullify the reservation of title. If the Buyer, in connection with the payment of the purchase price, creates a liability for the Seller on the basis of a bill of exchange, the reservation of title shall continue to exist until the Buyer as the drawee has honoured the bill. In the event of a delay of payment by the Buyer, the Seller, after rescinding the contract, shall be entitled to reclaim the goods subject to reservation of title, and the Buyer shall be obliged to surrender the goods.
2. If the Buyer incorporates the goods subject to reservation of title into a new movable object, such processing shall be done on behalf of the Seller, and no obligations shall arise from this for the Seller. The new object shall be the Seller’s property. If the goods are processed together with goods that are not the property of the Seller, the Seller acquires co-ownership of the new object at the ratio of the value of the goods subject to reservation of title, at the time of the processing, to the value of the other goods. If the goods subject to reservation of title are combined, mixed or commingled with goods that are not the property of the Seller, the Seller shall become co-owner in accordance with the statutory provisions, cf. section 947 and section 948 BGB (Civil Code). If the Buyer acquires a property right by such combining, mixing or mingling, Buyer hereby transfers to the Seller a co-ownership share at the ratio of the value of the goods under reservation of title, at the time of the combining, mixing or mingling, to these other goods. In that case, the Buyer shall keep safe, free of charge, the objects owned or co-owned by the Seller, which are also deemed goods subject to reservation of title within the meaning of the next provision.
3. If goods subject to reservation of title are sold by the Buyer, whether alone or together with goods that are not the property of the Seller, the Buyer hereby assigns to the Seller any accounts receivable resulting from such resale, in the amount of the value of the goods subject to reservation of title, together with all the ancillary rights and a priority ranking; the Seller accepts this assignment. The value of the goods subject to reservation of title shall be the amount of the Seller’s invoice plus a security surcharge of 10%, which shall, however be neglected if there are opposing third-party rights. If the resold goods under reservation of title are co-owned by the Seller, the assignment of receivables shall extend to an amount equivalent to the value of the Seller’s share in the co-owned object. Clause 1) sentence 2) shall apply accordingly to the extended reservation of title, the advance assignment in clause 3) sentences 1) and 3) shall extend to the balance claim.
4. The Buyer shall be entitled and permitted to resell, use or incorporate the goods subject to reservation of title only in the ordinary course of business and only provided the receivables under clauses 3, 4, and 5 will actually be transferred to the Seller. The Buyer shall not be entitled to any other disposal of the goods subject to reservation of title, which excludes in particular the pledging as collateral and transfer by way of security. In a resale of the goods subject to reservation of title the Buyer shall secure by credit the Seller’s rights in the amount of the purchase price claimed.
5. In the event of a delay of payment, the Seller shall be entitled – even without exercising its cancellation right and without granting a grace period – to demand the surrender of the goods subject to reservation of title at the Buyer’s expense and refuse their return until the purchase price has been paid.
6. The Seller authorises the Buyer to collect the receivables assigned under clauses 3), 4) and 5), reserving the right to revoke. The Seller will not use its own power to collect as long as the Buyer meets its payment obligations, also towards third parties. At the Seller’s demand, the Buyer shall name the debtors of the assigned receivables and shall notify them of the assignment; the Seller is also entitled to notify the debtors of the assignment.
7. In the event of any third-party levy of execution on the goods subject to reservation of title or on the assigned receivables, the Buyer shall inform the Seller forthwith, handing over the documents required for an objection. The same shall apply to any other interference.
8. In the event of cessation of payments, of an application for or the opening of insolvency proceedings, or of out-of-court settlement proceedings, the right of resale or use or incorporation of the goods subject to reservation of title as well as the power to collect assigned receivables shall lapse; if cheques or bills are protested, the power to collect shall also lapse.
9. The security provided to the Seller shall also extend to those debts which, in the event of insolvency, the insolvency administrator establishes unilaterally by way of choice of performance.
§ 7 Governing Law, Place of Performance, Legal Venue
1. The laws of the Federal Republic of Germany shall apply.
2. If the Buyer is a merchant within the meaning of the HGB (German Commercial Code), the place of performance for all obligations under the contractual relationship shall be the location of the Seller’s registered office.
3. If the requirements for an agreement on the legal venue in acc. with section 38 ZPO (Code of Civil Procedure) are fulfilled, i.e. if the Buyer is a merchant, the legal venue for all claims of the contract parties, including bills and cheques, shall be the court having jurisdiction over the Seller’s registered office.