Términos y Condiciones
Trusetal Verbandstoffwerk GmbH (tshs) General Terms of Sale and Delivery
These Terms of Delivery apply to all business relations, and as a basic agreement also to all future business relations, between tshs and its customers and to all tshs offers, deliveries and services. These Terms of Delivery shall apply exclusively. Customers’ or third parties’ contrary terms or terms differing from or adding to these Terms shall not apply and shall become part of the contract only if and insofar as tshs has agreed in textual form that they shall apply. This shall also be the case if tshs makes deliveries and provides services without reservation in the knowledge of the customer’s contrary or differing terms of business or if tshs refers to letters from the customer containing or referring to the customer’s or a third party’s terms of business.
Additions and/or amendments to the contracts concluded between tshs and the customer on the basis of these Terms of Delivery and to these Terms of Delivery themselves shall be valid only if in written form. With the exception of executive directors, holders of a general commercial power of attorney and authorised agents, employees of tshs are not authorised to make verbal agreements contrary to these Terms. Legally relevant declarations and notifications made or to be made to tshs by the customer after conclusion of the contract shall be valid only if in written form.
II. Conclusion of Contract
tshs’ offers are subject to change and without obligation. Customer’s orders are binding and the customer shall be bound by its order for a period of 14 calendar days from receipt of the order by tshs. During this time tshs can accept the customer’s order by issuing an acknowledgment in textual form or by delivering the goods to the customer.
Product descriptions, drawings and illustrations of goods, technical data and other information provided by tshs relating to the goods or to the delivery are merely guide values and approximate, unless the usability of the goods or service for the contractual purpose requires them to be precise. Such data and illustrations are simply descriptions of the goods or service and not warranted characteristic features. Deviations customary in the trade shall be permissible provided that the contractually stipulated usability of the goods or service is not impaired.
III. Prices and Terms of Payment
tshs’ prices are ex works plus VAT and, in the case of deliveries, exclusive of packaging, transport and freight. Any customs duties payable shall be borne by the customer. Within Germany tshs delivers franco domicile from an order value of € 150 net. Below that order value a flat-rate packaging and shipping charge of € 5.80 applies. Unless expressly otherwise agreed the purchase price is due and payable within 14 calendar days from receipt by the customer of an invoice from tshs and delivery of the goods. The customer shall be deemed in default upon expiry of the above time for payment. The customer shall have rights of retention and set-off only insofar as its counterclaims are undisputed or res judicata.
If tshs quotes delivery periods or dates these shall be deemed non-binding guide values unless such dates or periods are expressly designated as binding or agreed between the parties as binding. If the parties have agreed that the goods shall be shipped to the customer, the criterion of meeting delivery periods or delivery dates shall be the time of handover of the goods to the forwarder, carrier or other third party appointed to handle the shipping. Otherwise, the criterion of meeting delivery periods or delivery dates shall be the time when tshs notifies the customer that the goods are ready for dispatch. All delivery dates and delivery periods shall be subject to tshs duly obtaining its supplies on time, unless tshs is responsible for the delay in obtaining supplies or errors in the supplies. tshs shall inform the customer without delay if any delays to delivery dates or delivery periods are likely because of failure to obtain the due supplies on time.
tshs shall not be held liable for delivery delays or the impossibility of delivery due to force majeure or other events that tshs could not have foreseen at the time of concluding the contract and for which tshs is not responsible. tshs shall be entitled to cancel the contract if delivery becomes impossible for tshs because of such events or because of force majeure or if it becomes unduly difficult having regard to the value of the goods. If tshs is only temporarily prevented from making the delivery by such events or by force majeure, the delivery dates or delivery periods shall be extended by the length of time the impediment to performance continues plus a start-up period of one week. In this case the customer shall be entitled to cancel the contract if it cannot reasonably be expected to accept the late delivery and it notifies tshs accordingly in textual form without delay upon being informed by tshs about the impediment to performance. The customer’s right to cancel the contract in the event of impossibility of performance under the legal conditions shall be unaffected.
tshs shall be entitled to make part deliveries if a part delivery does not cause the customer any extra work or extra expense, delivery of the remainder of the goods is guaranteed and a part delivery is usable by the customer having regard to the purpose of the contract.
V. Retention of Title
The goods shall remain the property of tshs until full satisfaction of all tshs’ claims against the customer arising from the contract on which the delivery is based. The customer shall not pledge the goods delivered subject to retention of title to a third party or assign them as security until tshs’ claims against the customer that are secured by the retention of title have been settled. If the goods delivered to the customer subject to retention of title are attached by a third party or in the event of other third party seizure of the goods delivered subject to retention of title, the customer shall draw the third party’s attention to tshs’ ownership and inform tshs in textual form without delay. If the customer does not settle claims that are due or does not do so on time, tshs shall be entitled to take back the goods delivered subject to retention of title after setting the customer a reasonable time for performance and that time has elapsed without result. In this case the customer shall bear the shipping costs in respect of taking back the goods. Taking back by tshs of the goods delivered to the customer subject to retention of title shall constitute cancellation of the contract. The same shall apply if tshs attaches the goods delivered subject to retention of title.
The customer may use, resell and/or process the goods delivered subject to retention of title in the ordinary course of business. The following shall additionally apply in this respect: the customer shall as of now assign to tshs the customer’s claims arising from resale of the goods delivered subject to retention of title. This shall also apply to the customer’s claims relating to the goods delivered subject to retention of title accruing to the customer against a third party for other reasons now or in future (for example, claims to insurance benefits and/or claims based on tort). tshs accepts this assignment. The customer shall remain authorised to collect the aforementioned claims and tshs undertakes not to collect such claims as long as the customer fulfils its contractual obligations towards tshs, and in particular is not in default of payment, no application for commencement of insolvency proceedings is made in respect of the customer’s assets and its ability to pay is not otherwise deficient thus jeopardising tshs’ claim for payment of the purchase price. However, should such a case occur the customer shall inform its debtors about the assignment and shall give tshs the names of its debtors and provide all the information necessary to collect the claims assigned and shall hand over relevant records to tshs.
VI. Warranty, Warranty Claims
The warranty period is 12 months. The customer shall carefully inspect the goods immediately upon delivery and shall report any defects to tshs in textual form immediately upon discovery. The goods shall be deemed approved by the customer with regard to obvious defects or defects that would have been evident upon immediate careful inspection if the customer does not notify tshs of such defects in textual form within seven working days from passing of risk. With regard to other defects the goods shall be deemed approved by the customer if the customer does not notify tshs of the defect in textual form within seven working days from discovery of the defect. However, if the defect could have been detected earlier by the customer in the course of normal use of the goods, that earlier date shall be deemed the start of the time for claims.
If the goods are defective, tshs may choose the type of cure (repair or replacement). The right to refuse cure in accordance with the legal conditions shall be unaffected. tshs shall be entitled to make cure dependent upon payment of the purchase price. The customer shall, however, be entitled to withhold an appropriate portion of the price in proportion to the defect.
tshs shall be liable to compensate, irrespective of legal basis, only in cases of intent or gross negligence. In cases of ordinary negligence tshs shall be liable only for damage due to injury to life, limb or health and for damage due to breach of an essential contractual obligation (an obligation the discharge of which is necessary for proper performance of the contract and on the discharge of which the contracting party regularly relies and is entitled to rely). tshs’ liability in this case shall be limited to compensation for the foreseeable damage typically occurring. This limitation of liability does not apply to customer’s claims based on mandatory provisions of law (e.g. German Product Liability Act) or if tshs has concealed a defect with intent to deceive or if tshs has warranted the quality of the goods.
VIII. Place of Performance, Choice of Law and Place of Jurisdiction
The place of performance for all obligations arising from the contractual relationship shall be Schloss Holte-Stukenbrock. Legal relations between tshs and the customer shall be governed by the law of the Federal Republic of Germany as applicable to legal relations between domestic contracting parties. The UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. The exclusive place of jurisdiction for all disputes between tshs and the customer arising from or in connection with the contractual relationship shall be Schloss Holte-Stukenbrock.. Mandatory provisions of law concerning exclusive legal venues shall be unaffected.