General Terms and Conditions of Sale
of Tiemann Schutz-Systeme GmbH
Â§1 General - Scope
(1) Our terms and conditions of sales apply exclusively. We do not acknowledge conditions to the contrary nor terms or conditions of sale of the client which differ from ours, unless we have explicitly agreed to them in writing. Our terms and conditions also apply in the case where an unconditional delivery is made to the client with our knowledge of existing conditions to the contrary nor terms or conditions of sale of the client which differ from ours.
(2) Any agreements made between us and the client for the purpose of carrying out this contract are set down in the contract.
(3) The terms and conditions of sale apply only to businesses according to Â§ 310 section 1 BGB
Â§2 Offer â€“ Offer Documents
(1) If the order can be qualified as an offer in the terms of Â§ 145 BGB, we can honour it within 2 weeks.
(2) We retain copyrights and proprietary rights on any images, drawings, calculations and other documentation. This also applies to any such written documents marked as â€śconfidential.â€ť The client is required to have explicit written consent before transferring these to third parties.
Â§3 Prices â€“ Payment Terms
(1) As long as the order confirmation does not state otherwise, our prices are â€śex-works,â€ť exclusive of packaging; this will be specified separately on the invoice.
(2) The legally required value-added tax is not included in our prices. It will be specified separately on the invoice in the required amount on the date of issue.
(3) Cash discounts require a separate written agreement.
(4) As long the order confirmation does not state otherwise, the net purchase price (without discounts) is due for payment within 30 days from the date of the invoice. Legal regulations governing collections of default payments.
(5) The client is entitled to off-set payments only if his or her claim is legally binding, indisputable or is acknowledged by us. In addition, he is authorised to exercise he right to withhold payment insofar as the claim is based on the same contractual relationship.
Â§4 Delivery Time
(1) The beginning of the delivery time indicated by us assumes clarification of any technical issues.
(2) Maintenance of our delivery obligation further assumes the timely and proper fulfilment of the clientâ€™s obligations. We receive the right to objection to unfulfilled orders.
(3) Should the client fall into default of acceptance or culpably violate other obligations to cooperate, we will be authorised to demand compensation for damages incurred to that point, including any additional costs. The right to additional claims is reserved.
(4) Provided the conditions from section (3) are fulfilled, the risk of accidental destruction or accidental deterioration of the purchased good is transferred to the client during the time that the client is declared in default of acceptance or default of payment.
(5) We shall be further liable according to legal requirements, as long as the underlying sales contract is a fixed-date contract in the sense of Â§ 286 section 2 no. 4 BGB or Â§ 376 HGB. We shall also be liable according to legal requirements, provided that the delay in delivery on our side entitles the client to claim that he has no interest in further fulfilment of the contract.
(6) We shall be further liable according to legal requirements, provided the delay in delivery is based on deliberate breach of contract or one due to serious negligence on our part; a fault on the part of our representatives or subcontractors shall be attributed to us. Provided the delay in delivery is based on a breach of contract due to serious negligence, liability is limited to foreseeable and typically occurring damages.
(7) We shall also be liable according to legal requirements insofar as the delay in delivery is based on culpable violation of major contract obligations; in this case responsibility for damages is limited to foreseeable and typically occurring damages.
(8) Apart from that, we shall be liable in the case of a delay in delivery for each completed week for a flat-rate compensation for default in the amount of 3% of the delivery value, no more however than 15% of the delivery value.
(9) Further statutory claims and rights of the client remain reserved.
Â§5 Transfer of Risk â€“ Packaging Costs
(1) Provided that nothing else results from the order confirmation, the delivery is considered â€śex-works. â€ť
(2) Separate agreements apply for the return of packaging.
(3) Provided it is the clientâ€™s wish, we will cover the delivery with transport insurance; respective costs are toi be paid by the client.
Â§6 Warranty Claims
(1) Warranty claims asserted by the customer assume that inspection and notification obligations accordance with Â§ 377 HGB have been properly fulfilled.
(2) Insofar as a defect on purchased items is detected, the client has the choice of requiring subsequent action to eliminate of the defect or require delivery of a new defect-free product. In the case of defect elimination or replacement delivery we are obligated to cover expenditures necessary to compete the subsequent action, in particular transport, road, labour and material costs, insofar as these do not increase due to the fact that the purchased item is shipped to a different location than the place of fulfilment.
(3) If the supplementary action should fail, the client is entitled to cancel the order or request a price reduction.
(4) We shall be liable according to legal requirements, provided the client is entitled to compensation claims based on intent or gross negligence, including intent or gross negligence of our representatives or subcontractors. To the extent that we are not accused of intentional breach of contract, liability for damages is limited to foreseeable, typically occurring damages.
(5) We shall be liable according to legal requirements, provided we culpably violate a significant contractual violation; in this case as well, liability for damages is limited to foreseeable, typically occurring damages.
(6) As far as the client is entitled to claim for damages or compensation instead of subsequent action, our liability in accordance with Â§ 3 is also limited to foreseeable, typically occurring damages.
(7) Liability for culpable injury to life, body or health remains unaffected; this also applies to the liability mandated under the German Product Liability Law.
(8) In the absence of any provisions to the contrary above, liability shall be excluded.
(9) The statute of limitations for claims of defects is 12 months, calculated from the date of transfer of risk.
(10) The statute of limitations in the case of a delivery regress as per Â§Â§ 478, 479 BGB remains unaffected; it is set at five years from delivery of the defective item.
Â§7 Joint Liability
(1) Liability for damages extending further than prescribed in Â§ 6, is excluded - without consideration of the legal nature of the applicably made claim. This particularly applies to damage compensation claims that arise from faults made when closing a contract, through other violations of obligations or through tort claims for restitution of damages according to Â§ 823 BGB.
(2) The limitation in item (1) also applies insofar as the client demands reimbursement of useless expenditure instead of a claim to compensation for damages in place of the action.
(3) Insofar as liability for damages is excluded or limited for us, this also applies in regard to personal liability for damages of our employees, salaried workers, associates, representatives and fulfilment aides.
Â§8 Reservation of Property Rights
(1) We reserve ownership rights to the purchased goods until receipt of all payments from the delivery contract are confirmed. In case the customer violates the contract, in particular in case of payment default, we are entitled to take back the goods. Taking back the goods shall constitute withdrawal from the contract. We are authorised to sell the purchase item after retraction; proceeds from the sale are to be deducted from the commitments of the client â€“ reduced by appropriate costs for utilisation.
(2) The client is obligated to handle the purchased good with care; the client is in particular obligated to sufficiently insure the goods at replacement value against fire, water and theft damages at his or her own expense. Provided that service and maintenance are required, the client must carry these out in good time at his or her own expense.
(3) In case of levies of execution or other intervention of third parties, the client must immediately notify us in writing, so that we may file a suit as per Â§771 ZPO. Insofar as the third party is not able to reimburse us for court costs and extra-judicial costs of an action pursuant to Â§ 771 ZPO, the client shall be liable for the loss.
(4) The customer is entitled to resell the purchased goods in the ordinary course of business; however, he thereby forfeits all claims us to the amount of the final invoice total (including VAT) which arise from the resale to a client or third party, regardless of whether the purchased goods have been resold with or without further processing. The client shall be entitled to collect this claim even after assignment has taken effect. Our right to collect the claim ourselves shall remain unaffected by this. However, we will not make use of this right as long as the client complies with payments from proceeds received from sales and does not enter into default of payment and, in particular, has not been issued a petition for the opening of settlement or solvency proceedings or bankruptcy. If this is the case, however, we can demand that the client make their accrued claims and their debtors known to us, report all necessary information for collection, hand over the corresponding documentation and inform the debtors (third parties) of the surrender.
(5) Any processing or restructuring of the goods by the client shall always be performed on our behalf. If the merchandise is processed with other articles not in our property, we shall acquire co-ownership of the new article in the ratio of the objective value of the goods (final invoice including VAT) to the other processed articles at the time of mixing. If the mixing takes place in such a manner that the material of the client is to be viewed as the principal product. The customer shall store the so-created acquired goods for us.
(6) If the purchased goods are processed together with other items not being our property, we shall acquire co-ownership in the new items in relation of the value of the purchased goods (final invoice amount, including VAT) to the other items processed at the time of mixing. If the mixing takes place in such a manner that the material of the customer is to be viewed as the principal product, it is agreed upon that the customer transfers ownership to us proportionately.
(7) To secure our claims against the client, the client shall also assign to us claims accruing to it from the connection of the delivery item with real property or against a third party.
(8) We shall be obligated to release the security owed to us at clientâ€™s request to the extent that the value of our security exceeds the claims to be secured by more than 10%; the selection of the type of security to be released shall be incumbent upon us.
Â§9 Place of Jurisdiction and Fulfilment
(1) If the client is a merchant, our headquarters is our place of jurisdiction; however, we are authorised to bring suit against the client at the court in his area of residence.
(2) The law of the Federal Republic of Germany applies; the UN Purchasing Convention does not apply.
(3) Provided the order confirmation does not specify otherwise, our business headquarters are the place of fulfilment.
Tiemann Schutz-Systeme GmbH, updated November 2010
General Terms and Conditions of Sale Download