GTC of Sale

General Terms and Conditions of TS INDUSTRIE GmbH

General Terms and Conditions of Sale and Delivery

I. General Information

  1. The following terms and conditions of delivery apply to all contracts, deliveries and other services, including remunerated and non-remunerated consultancy services, provided they were not revised or excluded with the explicit, written consent of Seller.
  2. They apply only to contracts with customers who are not consumers in the sense of § 13 of the German Civil Code. Farmers that make an income or supplement the income from their activities, are not consumers in the sense of the Law. Terms and Conditions of Buyer will not be part of the contract, even when Seller does not contradict them and provides the delivery / service as agreed upon without reservations.
  3. Arrangements deviating from these terms and conditions should be included in the order confirmation.

II. Offer and Scope

  1. Offers of Seller are always subject to change. The documents included in the offer, such as illustrations, drawings, weights and dimensions are approximate, unless explicitly designated as binding. The changes are inadequate and unacceptable by Buyer insofar they go beyond the commercial standards. Payments and running costs are specified as average values. Seller will retain ownership and copyrights of cost estimates, drawings and other documents, they are not to be made accessible to third parties.
  2. Buyer is bound by the order until no later than 4 weeks. The purchase contract is completed when Seller confirms the order acceptance in writing of the specified purchase within this term or when delivery is made. However, Seller is obliged to notify in writing any rejection of the purchase order immediately.
  3. All agreements between Seller and Buyer must be laid down in writing in the respective Sales Contract. This also applies to any ancillary agreements, commitments and subsequent amendments.
  4. Design and shape changes to the purchase will remain reserved, to the extent that the purchase is not changed significantly and the changes are acceptable to Buyer.
  5. Information contained in the descriptions handed to Buyer with regard to scope, appearance, performances, dimensions, weights, fuel consumption and operating costs are part of the agreement. They serve as a benchmark to determine whether the purchase is flawless.

III. Price and Payment

  1. The prices apply in the absence of special agreement from the warehouse of Seller or in case of dispatch from the manufacturing plant ex works, excluding packaging. The prices do not include VAT. Should the delivery take place more than 4 months after the contract was concluded, Seller will be entitled to demand price renegotiations in case of price increases by suppliers or unexpected increases in labor costs and transportation costs. Seller is only bound by the fixed price for the delivery time agreed upon - but at least 4 months. Seller may charge Buyer additional costs to Seller caused by delayed acceptance by Buyer.
  2. In the absence of special agreement payment must be made without fail within 10 days after delivery or drawing up and receipt of the invoice, without any deduction. Buyer's rights of retention according to § 320 BGB (German Civil Code) are not affected by this. Discounts apply only in case Buyer is not behind in payment with regard to previous deliveries.
  3. Seller will only accept discountable and properly taxed bills of exchange in payment if so agreed upon. Credit notes via bills of exchange and cheques are processed, subject to the provisions of entry, minus the costs from crediting to an account at the date on which Seller obtains the counter value.
  4. Settlement by not legally established or by Seller disputed counterclaims of Buyer is not permitted. Buyer can only assert a right of retention in so far as it is based on claims arising from the purchase contract. If a notice of defect is claimed, Buyer may retain payments to an extent that is in a reasonable proportion to the defects that occurred.
  5. Payments may only be made to employees of Seller, if they can show legitimate collection authorization.

IV. Delivery Times and Delays

  1. Delivery times and dates are binding only if they have been explicitly designated as such by Seller. The delivery time starts with drawing up the contract, but not before submitting Buyer documents, approvals, releases and receipt of an agreed advanced payment.
  2. Correct and timely delivery is reserved.
  3. The delivery time may be appropriately prolonged in case of legitimate labor disputes, in particular strikes and lock-outs, and unforeseen obstructions that are outside of the reach of Seller or his representatives, insofar as such obstructions evidently influence the purchase delivery.
  4. The same applies if Seller in turn does not receive supplies in time. Seller is entitled to withdraw if the manufacturer does not supply him. However, this does not apply if the non-delivery is to blame on Seller (e.g. late payment).
  5. Meeting the delivery time demands that Buyer meets the contractual requirements.
  6. If Buyer is faced with damages on account of a delay, Seller is liable according to statutory provisions.
  7. Seller is not responsible for delayed or failed (impossibility) deliveries caused by his suppliers, except in case of negligence on the side of Seller. Rule 1 does not apply if the relationship between Seller and Buyer is based on Contractor's Law. In any case, Seller is obligated to indemnify Buyer to the extent that Seller can pass on the claims against the supplier.
  8. Seller may in addition to the legal time limit of § 286 rule 3 BGB and the summons, declare Buyer in default deviating from the time limit according to paragraph 111.2 , by another payment period within the meaning of Section 286 rule 2 BGB.

V. Passing of Risk and Transport

  1. In the absence of special agreements, dispatch and means of transport are left to the choice of Seller. The product is insured at the request and expense of Buyer.
  2. In case of consignment, risk is transferred to Buyer as soon as the goods are handed over to the forwarding agent or carrier, but at the latest when the goods exit the warehouse or, in case of delivery ex factory, when they leave the factory. This applies even then, when partial deliveries are made or Seller has taken over further payments.
  3. If shipment is delayed due to circumstances caused by Buyer, the risk is transferred to Buyer from the day that the goods are ready for shipment. However, Seller is required to arrange insurance at the request and expense of Buyer.
  4. Delivered goods, even if they exhibit minor defects, must be received by Buyer without prejudice to the rights under Section VII (notice of defects and liability for defects).
  5. Partial deliveries are permitted, insofar as this is reasonable to Buyer.

VI. Retention of Title

  1. Seller reserves the right of ownership until payment of all claims arising from the business arrangement with Buyer is completed.
  2. Buyer is bound to handle the purchase with care, to secure it against interference from any third party and if this has been agreed to in writing, to promptly insure it against fire "for account of a third party" and submit this upon request; otherwise, Seller has the right to arrange insurance at the expense of Buyer. Buyer is required to assign any fire insurance claims to Seller.
  3. Buyer is not allowed to pawn or hypothecate the purchase without the consent of Seller. Buyer is obliged to notify Seller in case of seizure or other interventions by third parties in writing without delay, so that Seller can file a complaint in accordance with § 771 ZPO. As far as the third party is not in a position to reimburse Seller for the judicial and extra-judicial costs incurred this action pursuant to § 771 of the German Code, Buyer is obliged to compensate for the costs incurred.
  4. Buyer is entitled to resell the goods in the ordinary course of business. Buyer will renounce all claims in the amount of the total invoice amount (including VAT) to Seller arising from the resale to his customers or third party, irrespective of whether the object is resold without or after processing. Buyer is authorized to collect these claims even after such renunciation. The right of Seller to collect the claims himself remains unaffected, but Seller has the obligation to abandon claims as long as Buyer meets his payment obligations. Otherwise Seller may require that Buyer reveals the renounced claims and their debtors, provides all the necessary details for collection, hands over the necessary documents and informs the debtor of the renouncement.
  5. If a vehicle registration certificate is issued for the purchase, Seller has the exclusive right to the vehicle registration certificate title during the term of the retention.
  6. If Buyer acts contrary to the agreement, in particular in the case of delayed payment, Seller is entitled to take back the goods after a reminder and Buyer is obliged to return it. In case of return or seizure of the product by Seller, unless the provisions of the German Civil Code (BGB) concerning credit for consumers are applicable, a withdrawal from the contract will take place only if Seller expressly declares this in writing.
  7. All costs for the return and the processing of the purchase will be charged to Buyer. Without evidence the processing costs will be 10% of the processing proceeds including VAT. They could increase or decrease if Seller furnishes proof of higher costs or when Buyer produces proof of lower costs. The proceeds will be credited to Buyer's account after deduction of the costs and other claims of Seller related to the sales agreement.

VII. Notice of Defects and Liability for Defects

  1. Seller will only be liable for defects as follows:
    a) Buyer must examine the received goods immediately upon arrival with regard to quantity, quality and promised properties. He should notify obvious defects immediately, within 14 days at the latest, by written notice to Seller. If the contract is a commercial transaction for both parties, § 377 applies with the proviso that identified defects must be notified within 14 days by written notice to Seller.
    b) All parts that prove to be useless or whose usability is negligible as a result of a circumstance before the transfer of risk, in particular due to faulty design, poor materials or defective design, must be repaired or replaced by new ones free of charge, at the discretion of Seller. Replaced parts will become the property of Seller. The liability of Seller will end one year after the transfer of risk; in case of seasonal machines, however, after the end of the first work season. In the event of replacement of the entire object under warranty, Seller has a right to unlimited exemption for use regarding the returned object.
    c) Buyer's right to submit claims arising from defects will become statute-barred after 12 months from the date of the transfer of risk in all cases.
    d) No guarantee is given for damages arising from the following reasons: Inadequate or improper use, faulty assembly or start-up by Buyer or third parties, missed maintenance work to be carried out by a specialist workshop, if these are recommended by the manufacturer, normal wear and tear- in particular wear parts, incorrect or negligent operation, unsuitable lubricants and/or replacement materials, faulty construction work, unsuitable soil, chemical, electronic or electrical influences insofar they are not attributed to Seller.
    e) In case of a defect, Buyer hast to set a reasonable time limit to allow Seller to carry out the necessary work. If Buyer denies Seller the time necessary to carry out the work, Seller will be no longer liable. Only in cases of acute danger to operational safety and to avert excessive damages, in which Seller is to be notified immediately, or if Seller fails, Buyer has the right to have the defect remedied by a third party and to claim reimbursement of the costs involved with Seller.
    f) For replacement and repair, the warranty period is 12 months. The time limit for the liability for defects in the purchase is extended by the time needed to restore the purchase.
    g) Seller is not liable for consequences arisen from improper changes or repairs carried out by Buyer or third parties without the prior permission of Seller.
    h) If a replacement or repair to be carried out by Seller fails, in spite of several attempts, Buyer may withdraw from the contract (resignation) or demand a corresponding reduction of the payment. For failing to meet the contract requirements, in general Seller should be given two opportunities within a reasonable time, taking into account the stress for Buyer and the complexity of the defect.
    i) Seller will be liable to Buyer for intent and gross negligence in accordance with legal provisions. The same applies if the object to be delivered fails a guaranteed feature, or if Seller culpably violates an essential contractual obligation. If Seller negligently violates a cardinal or contractual obligation, his obligation is limited to typical contract and foreseeable damage. In all other cases, the liability of Seller towards Buyer - regardless of legal grounds - is excluded. Seller will not refer to this disclaimer if there is an insurance coverage in favor of Seller for the asserted claim by Buyer.
  2. With regard to used goods Seller will only be a liability for defects, if this has been explicitly agreed upon in writing with Buyer.

VIII. General Limitation of Liability

  1. Legal provisions apply to the liability of Seller towards Buyer as far as not otherwise agreed upon. This applies regardless of the legal nature of the asserted claim. As far as claims against Seller are excluded or restricted, this also applies in favor of the personal liability of employees, workers, deputies, agents or representatives of Seller.
  2. Buyer's claims against Seller will be barred according to the statutory provisions. However, there is a limitation period of six months insofar Seller rejected a Buyer's claim in writing.

IX. Fulfillment, Place of Jurisdiction, Applicable Law

  1. The place of performance and exclusive jurisdiction for delivery and payments as well as for all disputes arising between parties will be at the headquarters of Seller.
  2. The relations between the Contracting Parties will be governed solely by the law in force in the Federal Republic of Germany to the exclusion of the UN-Sales Right.

X. Partial Invalidity

  1. In case of ineffectiveness of individual parts the validity of the other provisions will remain intact. Instead of the ineffective clause a provision must be effective that approaches the pursued purpose of the original provision legally and economically.
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