GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
of Manufactory TMS e.K., Kay Trumpler Maschinenbau und Service, Biebertal.
Sales, deliveries and other services by TMS shall be rendered exclusively in accordance with the following General Terms and Conditions of Sale and Delivery (hereinafter: “Terms of Delivery”), which Customer accepts by placing his order or accepting delivery. These Terms of Delivery shall also apply for any future transaction with Customer. The application of Customer’s conflicting and supplementary terms and conditions is excluded even if they have not been expressly contradicted by TMS.
2. Conclusion of Contract
2.1 Offers by TMS are nonbonding. Contracts shall not be created until they have been confirmed in writing by TMS and shall be governed exclusively by the content of the confirmation of order and these Terms of Delivery. Verbal agreement or commitments must be confirmed by TMS to become effective.
2.2 TMS’ commercial agents may not enter into any contracts in TMS’ name and may not deliver any binding promises with respect to the subject of delivery or other terms.
2.3 TMS reserves all rights to sale documentation and samples, which may not be made available to third parties and are to be promptly returned to TMS upon request.
3. Periods, Deadlines, Passage of Risk
3.1 Delivery dates and delivery periods are only binding if they have been confirmed by TMS in writing and Customer has disclosed or provided to TMS all of the information and documents necessary for delivery in a timely manner and has made any agreed down payments as scheduled. Agreed periods shall commence on the date of the confirmation of order. In the event of additional or expanded orders placed at a later time, such periods shall be extended accordingly. The delivery period has been honoured if the subject of delivery has left our plant by the expiration of such period or Customer has been notified of the readiness for delivery.
3.2 Unforeseeable events such as acts of God, war, labour conflicts, natural disasters and other unavoidable events and events outside of the scope of TMS’ influence for which TMS bears no responsibility shall release TMS from the obligation to make timely delivery or performance for the duration of such events. Agreed periods shall be extended accordingly by the length of the disturbance; Customer shall be informed in an appropriate manner that a disturbance has occurred or ended. If the end of the disturbance is not foreseeable or if it lasts for more than three months, each party shall be entitled to rescind the contract.
3.3 Should TMS be in default of complying with a delivery or performance date, Customer shall be entitled to a rescission only after he has given a written notice of default in which he sets a reasonable period of grace of at least two weeks which has expired to no avail.
3.4 If Customer is in default of accepting performance or if he should be in breach of other duties to co-operate with TMS, TMS shall be entitled to reasonably warehouse the goods at Customer’s risk and expense. TMS shall be entitled, irrespective of any other rights, to rescind the contract if Customer has allowed a reasonable period of grace set for his acceptance of delivery to expire to no avail.
3.5 TMS may make partial delivery upon justified reasons.
3.6 Unless Customer stipulates otherwise, shipment shall be made using a reasonable form of shipment in the customary packaging.
3.7 Risk shall pass to Customer upon the delivery of the subject of delivery to the transport company or to Customer himself. If delivery or shipment is delayed on grounds for which Customer bears responsibility, risk shall pass to Customer on the day of the readiness of the subject of delivery for shipment.
4. Prices, Terms of Payment
4.1 If the parties have not agreed to a particular price, the price shall be determined by the prices set down in the TMS compute system on the date of the conclusion of contract or the TMS price list applicable at such time.
4.2 Should TMS specify minimum values of contract for individual or all product lines, Customer shall pay to TMS the difference of such minimum value of contract to TMS in addition to the value of the invoice for the goods actually bought from TMS.
4.3 All TMS prices are exclusive of the applicable value-added tax, any import duties and the costs of packaging and shipment, which shall all be invoiced separately. TMS shall only ensure the shipment of the subject of delivery to Customer upon Customer’s request and at his expense.
4.4 Customer shall be obligated in any event to notify TMS in writing of any transport damage without undue delay, but no later than after 5 days of receiving.
4.5 Unless otherwise agreed, TMS shall issue for machines upon the confirmation of order an invoice for an advance of 50 % of the purchase price, payable immediately; upon the receipt of the machine by Customer an invoice for the full purchase price with a reference to the advance in the amount of 50 %; of the remaining 50% of the purchase price,
– 50 % is payable immediately after the setting to work by TMS
– 10 % is payable upon the start-up of the good/machine, but no later than one month following the receipt of the good/machine.
4.6 TMS shall invoice consumable goods and replacement parts and expendable parts upon delivery. TMS shall grant a discount of 2 % in the event of payment within 14 days of the date of invoice. Otherwise, all invoices shall be payable 30 days after the date of invoice without any deductions.
Invoices with predominantly costs of salary will paid at once after receipt and without discount.
4.7 In the event that the due dates provided under clauses 4.5 and 4.6 here of are overrun, TMS shall be entitled, subject to proof by Customer of lesser damages, to demand late interest charges of 4% above the respective base interest rate according to the Discount Rate Transmission Act per annum.
4.8 Bills of exchange are not accepted.
4.9 Customer is only entitled to a set-off if his counterclaim is uncontested or is final and absolute.
4.10 Customer is only entitled to assert a right of retention if his counterclaim is based on the same contract and is uncontested or final and absolute.
4.11 Should TMS become aware of significant deterioration in Customer’s financial situation following the conclusion of contract (e.g. because Customer is in default of payment), TMS shall be entitled to only make
outstanding deliveries or performance upon Customer’s prepayment or rendering of collateral; in the event that they have not been provided even after the expiration of a reasonable period of grace, TMS may fully or partially rescind the contract without prejudice to any further rights it may have.
The provisions of the following clauses 5.1 and 5.2 shall only apply for the sale of machines.
5.1 Customer is only obligated to accept items of delivery manufactured in accordance with contract.
5.2 If Customer uses the item of delivery for a period of at least two weeks without any objections, this shall be deemed to be his acceptance.
6. Warranty, Duty of Inspection
6.1 TMS warrants that the delivered goods are free of defects and exhibit their possibly specifically warranted characteristics. Information in catalogues, price list and other informational material provided by TMS to Customer, as well as descriptive product information, shall not be deemed in any way to be a specific warranty of certain characteristics.
6.2 Warranty rights on the part of Customer shall require that he has inspected the subject of delivery without undue delay upon delivery and has notified TMS of any defects without undue delay, but no later than two weeks following delivery, in writing; hidden defects must be reported to TMS in writing without undue delay following their discovery.
6.3 In the event of a notice of defect TMS shall have the right to inspect and test the subject of delivery in question. To such end, Customer shall grant TMS the required time and opportunity. TMS may also demand from Customer that he sends the subject of delivery in question to TMS at TMS’ expense. If Customer’s notice of defect proves to be unjustified, he shall be obligated to TMS for the compensation of all expenses incurred in this context – e.g. travel expenses and costs of technicians or shipping costs.
6.4 Defects for which a warranty must be provided shall be remedied by TMS at its own option by remedial work or the delivery of a replacement, both at no cost for Customer.
6.5 Customer shall grant TMS the required time and opportunity for the remedial work or delivery of a replacement. Customer shall only have the right, following consultation without undue delay with TMS, to remove the defect itself or have it removed by a third party and demand from TMS compensation for its necessary expenses in emergencies in which there is a threat to plant safety or to avert unreasonably large damage or if TMS is in default of remedying the defect.
6.6 Ownership to the parts replaced by TMS shall pass to TMS.
6.7 TMS shall not assume any warranty for damage caused by inappropriate or improper use, faulty treatment, faulty installation by Customer or third parties commissioned by him, natural wear and tear (particularly to expendable parts) or faulty electromechanical or electrical conditions. The warranty obligation shall furthermore not extend to defects caused by improper handling, storage, cleaning or the like by Customer or third parties commissioned by him if TMS bears no responsibility for them.
6.8 The costs of materials, shipping and labour for the purpose of remedial work or the delivery of replacements shall be assumed by TMS, provided that the defect reported by Customer has been recognised as such.
6.9 Should the removal of a defect, to which the warranty applies, through remedial work or the delivery of a replacement is unsuccessful, Customer may rescind the contract relating to the defective subject of delivery or demand a reasonable reduction in price.
6.10 The warranty period for the subject of delivery shall be twenty-four months from the date of the passage of risk for new parts only. For machines this shall only apply in the event that they are used for no more than 8 hours per day (one-shift operation) or for a maximum operating period of 2500 hours during this period; if these time periods are exceeded, only the statutory warranty period of twelve months shall apply. The date of the passage of risk shall also govern the warranty claims for remedial work not undertaken until after delivery has been made. Should shipment, the installation or start-up of the subject of delivery be delayed through no fault of TMS, the warranty claims shall expire no later than twenty-four months from the passage or risk.
6.11 All further claims of Customers shall be excluded unless clause 7 hereof provides otherwise.
7. Damage Compensation and Limitation of Liability
7.1 TMS shall be liable for damage compensation
(i) for damage caused intentionally or through grass negligence by TMS or its servants and agents.
(ii) In the event of slight negligence in the breach of material obligations of contract, but limited to the damage typically foreseeable for the type of contract.
(iii) In accordance with the provisions of the Product Liability Act and any other mandatory statutory liability regulations.
7.2 If none of the categories of damage under clause 7.1 has been fulfilled, TMS shall not be liable for damage compensation.
7.3 1n the case of clause 7.1 (ii) TMS’ liability shall be limited to the value of the subject of delivery.
7.4 Clauses 7.1 and 7.2 shall be applicable to all damage compensation claims, regardless of their legal basis, including, but not limited to, liability in tort, for the breach of a positive contractual obligation and breach of fiduciary duties prior to and upon contracting.
7.5 Customer is obligated to engage in reasonable measures for avoiding and lessening any damage.
8. Retention of Title
8.1 The delivered products shall remain the property of TMS until complete payment is made of all of TMS’ receivables arising under its business relationship with Customer.
8.2 In the event of a current account the retention of title shall serve to secure the claim to the balance to which TMS is entitled.
8.3 Customer shall only be entitled to sell the products subject to the retention of title within the scope of normal business transactions. Factoring shall not be permitted. Customer is not entitled to pledge, provide chattel mortgages on or otherwise dispose of the products subject to retention of title in a manner endangering TMS’ ownership. Customer hereby assigns his claims for the proceeds under the resale of the products to TMS, which accepts such assignment. Customer is conditionally authorised to collect in trust the receivables assigned to TMS in his own name and on behalf of TMS. TMS may revoke this authorisation and the entitlement to resell the products if customer is in default of material obligations to TMS such as his payment obligations.
8.4 Customer shall provide TMS at all times with the requested information concerning the products sold under retention of title or claims which have been assigned to TMS hereunder. Attachments of or claims against the products sold under retention of title through third parties must be reported immediately by Customer to TMS upon provision of the necessary documentation. Customer shall simultaneously inform the third party of TMS’ retention of title. The costs of averting such attachments and claims shall be borne by Customer.
8.5 Customer is obligated to treat the products sold under the retention of title with care for the duration of such retention of title.
8.6 Should the realisable value of the collateral exceed the total amount of TMS’ receivables to be secured by more than 10 % Customers shall be entitled to demand a release of collateral to such extent.
8.7 Should Customer be in default of a material obligation such as payment to TMS, TMS may take back any products sold under the retention of title without prejudice to any other rights it may have and otherwise realise such products for the purpose of satisfying its receivables due for payment by Customer. In this case Customer shall provide TMS or its representatives immediate assess to the products sold under retention of title and surrender the same. Should TMS demand a surrender of goods under the provisions of this clause, this shall not be deemed to be a rescission of contract.
8.8 In the event of deliveries to other jurisdictions in which the foregoing arrangements governing the retention of title do not have the same effect of securing right as in Germany, Customer shall do everything to create corresponding rights of security for the benefit of TMS. Customer shall cooperate, for example, in the registrations, public notices and the like required for and expedient to effectuating and enforcing such rights of security.
8.9 Customer is obligated to reasonably insure the products sold under retention of title. Upon TMS’ request, Customer shall provide TMS with equivalent insurance certificates and shall assign the claims under the insurance contract to TMS in the amount of TMS’ respective remaining claim.
9. Product Liability
Should Customer sell the subject of delivery unaltered or following processing, union, mixing or confusion with other goods, he shall indemnify TMS within his internal relationship with TMS against product liability claims of third parties to the extent he is responsible for the fault causing such liability.
10. Intellectual Property
Should Customer prescribe how TMS is to produce the products to be delivered by providing certain instructions, information, documents, drafts or drawings, Customer shall warrant that no thirdparts rights such as patents, utility models and other proprietary and copyrights shall be infringed by TMS. Customer shall indemnify TMS against all claims of third parties which they may raise against TMS because of such infringement.
11. General Terms and Conditions
11.1 Changes and supplements to the contract and/or these Terms of Delivery, as well as any side agreement, shall require written form. This shall also apply for the modification of this written form requirement.
11.2 If a term of the contract and/or these Terms of Delivery are fully or partially invalid, the other provisions shall remain unaffected. The parties undertake in such case to replace the invalid provision by such valid provision which may come closest to the commercial purpose of the invalid provision.
11.3 If Customer is a merchant, legal entity under public law, the exclusive place of jurisdiction for all disputes arising under the parties’ contractual relationship shall be Frankfurt am Main. This shall also apply if Customer does not have any general place
of jurisdiction in the Federal Republic of Germany or has moved his habitual residence to a foreign country following the conclusion of contract. TMS is entitled, however, to enter actions against Customer at any other statutory court of jurisdiction.
11.4 The law of the Federal Republic of Germany shall apply with the exception of the UN Law of Sales (CISG).