Terms & Conditions
General Terms and Conditions of Sale and Delivery
1. General provisions
1.1 All current and future deliveries and services to the supplier’s contractual partners (hereinafter referred to as “purchaser”) shall be based on these General Terms and Conditions of Sale, Delivery, and Payment. Provisions deviating from these terms and conditions, in particular the Purchaser’s general terms and conditions, shall not apply, even if the Supplier does not separately object to their validity in individual cases or if the contractually owed service is provided without reservation in the knowledge of conflicting or deviating terms and conditions of the Purchaser.
1.2 All contracts for deliveries and services, as well as all supplements or other agreements and arrangements, require the written confirmation of the supplier to be legally effective.
1.3 Information and descriptions provided by the supplier regarding the subject matter of the delivery or service (e.g., material quality and grade, weights, dimensions, utility values, load-bearing capacity, tolerances, and technical data) are only approximate. Order-related approval drawings provided by the supplier comply with the relevant DIN standards at the time of the supplier’s order confirmation. Declarations, performance specifications, assurances, or advice are only binding for the supplier if they are confirmed by the supplier in writing. Technical changes, deviations in dimensions, weight, and quality are permissible in accordance with DIN or applicable practice.
1.4 The supplier reserves ownership rights and copyrights to costs, estimates, drawings, and other documents; they may not be made accessible to third parties and must be returned immediately upon request or if the order is not placed with the supplier.
2. Prices
2.1 Prices are exclusive of sales tax. Sales tax will be shown separately on the invoice at the statutory rate on the date of invoicing.
2.2 Prices are ex works, excluding installation and packaging. They apply only to the respective individual order. Packaging, loading, and transport costs shall be borne by the customer.
2.3 If there are more than three months between the order being placed and delivery and if, during this period, changes in the basis of calculation occur due to higher wage and material costs or other circumstances, in particular technically justified changes in calculation, the supplier is entitled to increase the contract price in reasonable proportion to the change that has occurred and the basis of calculation. This also applies to call-off orders.
3. Deliveries and delivery times
3.1 The supplier is entitled to make partial deliveries in the case of divisible deliveries.
3.2 Deadlines for deliveries or services are only binding if they are expressly confirmed as binding by the supplier.
3.3 The agreed delivery deadlines only apply on condition that all details of the order have been clarified in good time and that the purchaser has fulfilled all obligations in good time.
3.4 The purchaser may only set a grace period for delivery if the agreed delivery date has been exceeded by more than two weeks. This grace period must be reasonable and amount to at least three weeks. If this grace period has been fruitlessly expired, the supplier is entitled to withdraw from the contract.
3.4 The purchaser may only set a grace period for delivery if the agreed delivery date has been exceeded by more than two weeks. This grace period must be reasonable and amount to at least three weeks. After the grace period has expired without result, the purchaser may withdraw from the contract.
The purchaser shall only be entitled to further rights, in particular claims for damages, in the event of intent or gross negligence on the part of the supplier.
3.5 If circumstances for which the customer is responsible make it difficult, delay, or render impossible the execution of orders accepted, the supplier shall be entitled to postpone the delivery or remaining delivery or partial delivery for the duration of the hindrance or to withdraw from the contract in whole or in part without the customer being entitled to claims for damages.
The supplier shall not be responsible for, e.g., official interventions, operational disruptions, strikes, lockouts, work disruptions caused by political or economic conditions, shortages of necessary raw materials and supplies, energy supply difficulties, transport delays due to traffic disruptions or unavoidable events occurring at the supplier’s premises, its subcontractors or third-party companies on which the supplier depends to maintain its own operations. The above shall also apply if these events occur at a time when the supplier is in default.
3.6 If, after expiry of the delivery period, the subject matter of the contract or parts thereof cannot be obtained by the customer or cannot be delivered through the fault of the customer, the supplier shall be entitled to set a two-week grace period and, after its fruitless expiry, to claim damages and/or withdraw from the unfulfilled part of the contract.
3.7 If, after conclusion of the contract, there are indications that the customer’s ability to pay is at risk, such as default or suspension of payments, application for the opening of insolvency proceedings, transfer of current assets as security, unfavorable information from banks, credit institutions, or credit insurers, the supplier shall be entitled to refuse performance and, after setting a fruitless deadline for the provision of securities in the form of directly enforceable bank guarantees or bank guarantees or advance payment, to withdraw from the contract and/or claim damages. A deadline shall not be set if the risk to the customer’s ability to perform is obvious.
4. Shipping and transfer of risk
4.1 The supplier shall ship the delivery ex works at the risk of the purchaser, even if the freight and other costs are borne by the supplier. The supplier shall insure the delivery against transport damage only upon express written instruction and at the expense of the purchaser. If the delivery is insured against transport damage, the purchaser shall inform the supplier immediately in the event of transport damage and arrange for the carrier to record the facts.
4.2 If collection has been agreed and does not take place within eight days of the agreed date, the supplier shall ship the goods using a shipping method it deems appropriate at the purchaser’s expense.
4.3 If the loading or transport of the delivery item is delayed for a reason for which the customer is responsible, the supplier shall be entitled, at the expense and risk of the customer, to store the delivery at its discretion, to take all measures deemed appropriate to preserve the delivery, and to invoice the delivery as delivered. The same shall apply if the delivery reported as ready for shipment is not called off within eight days. The statutory provisions for default of acceptance shall remain unaffected.
5. Retention of title
5.1 The delivery shall remain the property of the supplier until all claims, including future claims, to which the supplier is entitled against the purchaser have been paid in full. This shall also apply to payments of specifically designated claims until any current account balance has been settled.
5.2 The supplier is entitled to demand the return of deliveries subject to retention of title from the purchaser without withdrawing from the contract.
5.3 Deliveries subject to retention of title shall be stored properly and separately from other deliveries at the purchaser’s expense, specially marked at the supplier’s request, and insured against damage, destruction, and loss. The purchaser shall provide the supplier with proof that this insurance has been taken out. The purchaser hereby assigns its claims from these insurance contracts in advance to the supplier in the amount of the value of the reserved property and agrees to the payment to the supplier. The supplier is entitled to take back the reserved property and, if necessary, to have third parties commissioned by the supplier enter the purchaser’s premises and premises for this purpose.
5.4 The purchaser is always revocably entitled to sell the reserved property in the ordinary course of business, provided that he fulfills his obligations to the supplier as agreed. In this case, or upon delivery of the reserved property to a third party, regardless of its value or condition, or upon installation, the purchaser hereby assigns to the supplier, until the supplier’s claims from these deliveries have been settled in full, all claims against its customer arising from the sale, delivery, or installation, including any claims for damages arising therefrom, to the supplier in the amount of the invoice value of the deliveries.
5.5 If the reserved property is processed, mixed, or transformed, the processing, mixing, or transformation shall be carried out for the supplier without warranty. In all these cases, the supplier shall be entitled to co-ownership of the new item in proportion to the value of the supplier’s reserved property to the new items at the time of processing or mixing.
5.6 In the event of a prohibition of assignment in the event of resale, installation, or default of payment, the customer is obligated to notify the third-party purchaser of the advance assignment. If the goods subject to retention of title delivered by the supplier are sold to a third party together with other goods, the part of the total price claim corresponding to the value of the delivery invoiced by the supplier shall be assigned to the supplier. In the event of default of payment by the customer, the supplier shall be entitled to collect the assigned claim directly from the third-party debtor.
5.7 The customer is not entitled to make any unusual dispositions such as pledging, assignment by way of security, or transfer of ownership of the reserved property. The customer is obliged to notify the supplier immediately if third parties access the items and claims subject to the supplier’s retention of title, e.g., through seizures or other impairments of the supplier’s ownership.
5.8 If the value of the total security provided to the supplier from the business relationship with the customer exceeds the supplier’s claims by more than 20%, the supplier shall be obliged to retransfer the excess amount at the customer’s request. The selection of the securities to be retransferred shall be made by the supplier.
6. Payments
6.1 Unless otherwise agreed, invoices shall be paid in full in the agreed currency within 30 days of the invoice date.
6.2 Payments shall only be deemed to have been made when the supplier has final access to the amount. Payments by bill of exchange and check shall only be accepted by special agreement. Discount and bill of exchange charges shall in any case be borne by the customer.
6.3 Incoming payments shall be used at the supplier’s discretion to settle the oldest or least secured liability plus any accrued default interest.
6.4 In the event of default in payment, the supplier shall be entitled to charge the statutory interest on arrears in accordance with § 288 BGB (German Civil Code) and to demand advance payment of the purchase price or security. Any payment terms granted shall lapse and outstanding claims shall become due for payment immediately if insolvency proceedings are initiated against the purchaser’s assets, if the purchaser fails to meet essential obligations due to the supplier or third parties without providing a justifiable reason, or if the purchaser has provided inaccurate information about its creditworthiness.
6.5 Offsetting against counterclaims is only permissible if the counterclaims have been legally established or recognized by the supplier. The same applies to the assertion of rights of retention on the amounts stated in the supplier’s invoices.
7. Liability for Material Defects
7.1 The agreed quality of the delivery owed by the supplier is based exclusively on the contractual agreements with the purchaser and not on other commercial statements, brochures, consultations, and the like.
7.2 The purchaser must check whether the delivery is of the contractual quality and suitable for the intended use. If this inspection is not carried out or if recognizable defects are not reported to the supplier immediately in accordance with the obligation to give notice of defects and inspect the goods pursuant to § 377 HGB (German Commercial Code), the delivery shall be deemed to have been approved with regard to such defects. Defects that are not immediately apparent shall be deemed to have been approved if they are not reported to the supplier in writing immediately after discovery.
7.3 Liability for material defects shall not apply if the customer does not give the supplier the opportunity to inspect and examine the rejected contractual item, if the delivery is not stored, used, or installed properly by the customer, or if it is connected to or installed in unsuitable parts, in particular parts not supplied by the supplier. Liability for material defects is also excluded in the event of natural wear and tear, improper handling of the delivery by the customer or third parties, and damage in connection with repairs or other work carried out by third parties.
7.4 The supplier shall, at its discretion and taking into account the interests of the customer, remedy properly raised and justified complaints by repair or replacement. Several attempts at repair or replacement deliveries are permissible. If the supplier fails to meet these obligations or fails to do so in accordance with the contract within a reasonable period of time, the customer may demand a reduction in price or withdraw from the contract. Further claims against the supplier, regardless of their legal basis, shall be limited to the respective net order value, unless the supplier has acted with gross negligence or personal injury has occurred.
7.5 The supplier guarantees that the materials are free of defects and have been manufactured properly for one year from delivery, unless a longer statutory period for claims for defects applies.
8. Damages, Liability
8.1 Any claims for damages beyond those mentioned in section 7 above are excluded, regardless of the legal grounds. This applies in particular to claims for damages arising from delay, impossibility of performance, culpable breach of ancillary contractual obligations, culpa in contrahendo, and tort. The supplier is therefore also not liable for damage that did not occur to the delivery itself. In particular, the supplier shall not be liable for lost profits or other financial losses incurred by the customer.
8.2 The above limitation of liability shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, or breach of essential contractual obligations. However, claims for damages due to breach of essential contractual obligations shall be limited to foreseeable damage typical for this type of contract, unless there is intent or gross negligence or mandatory liability due to injury to life, limb, or health.
8.3 Insofar as the supplier’s liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of the supplier’s employees, staff, and vicarious agents. The above provision does not imply a change in the burden of proof to the detriment of the customer.
8.4 Insofar as the customer is entitled to claims for damages under this provision in clause 8, these shall become time-barred upon expiry of the limitation period applicable to liability for material defects in accordance with clause 7.5 in 12 months. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
9. Offsetting, Assignment
9.1 Offsetting against claims against the supplier is not permitted, with the exception of undisputed or legally established claims. It is also not permitted to assert a right of retention that does not result from the same contractual relationship.
9.2 The assignment of claims to which the customer is entitled against the supplier to third parties is excluded.
10. Place of performance, place of jurisdiction
10.1 For all rights and obligations arising from the transaction concluded with the purchaser, the place of performance for delivery shall be the registered office of the delivering plant and for payment Bamberg. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
10.2 The place of jurisdiction for all disputes arising from the business relationship between the purchaser and the supplier shall be Bamberg or, at the supplier’s discretion, the place of jurisdiction at the purchaser’s registered office. The statutory provisions on exclusive places of jurisdiction shall remain unaffected.
11. Severability clause
Should any of the above provisions be or become legally invalid, this shall not affect the validity of the remaining provisions and the contract as a whole. Any provisions that become invalid shall be replaced by new provisions that achieve the same economic purpose. Insofar as provisions have not become part of the contract, the content of the contract shall then be governed by the statutory provisions.
TSK- Bad Kissingen GmbH & Co. KG
Headquarters in Eltmann
Bamberg Local Court HRA 10530
Tax ID No. 25917850308
As of January 2014