General terms of sale, delivery and payment of
TNG TradeandGlobe GmbH
1. General
The following conditions of sale apply to contracts concluded with us according to § 310 I BGB (= German Civil Code).
Contracts for deliveries shall be carried out exclusively in conformity with these General Terms of Sales, Delivery and Payment. Any other business terms set by any buyer shall be inadmissible should they derogate from the terms hereof, unless they require the written consent of TNG TradeandGlobe. No amendments to or modifications of this agreement made by any customer with reference to his business and/ or purchase terms shall be admissible.
Subsiadiary agreements and other changes require the written form in order to be valid.
Our conditions of sales apply also to future transactions with the customer.
2. Offer and Order
All offers, either in electronic, written or oral form are unbinding and are understood only as request to the customer to make an order. The customer is bound to his order 4 weeks as of the receipt of the order in our company. A contract is deemed to have been accepted when confirmed in writing by TNG TradeandGlobe, at the latest with the acceptance of delivery on the part of the customer. Our offers and order confirmations are always subject to a positive credit assessment of the customer and to a correct and punctual delivery by our own suppliers.
3. Industrial Property Rights and Copyright
All products including configuration schemes, drawings, drafts, descriptions and similar documents are normally subject to the industrial property rights/ copyright of the manufacturer/ licensor. The customer has no right to change, cover or remove any details of such properts rights.
The customer shall solemnly be responsible and liable for the protection of the above-mentioned industrial property rights and licence conditions of the manufacturer of third persons.
Should a third party assert claims against us based on an infringement of industrial property rights (including claims for compensation for legal costs) with respect to such an order, the customer shall indemnify us from such claim upon our request, restricted to the invoiced amount of the goods.
4. Quality, delivery times and deliveries, delay in delivery
Our written specifications apply exclusively for the volume and appointed time of delivery and for the agreed quality. Subsiadiary agreements and other changes require the written form in order to be valid.
Unless otherwise stipulated in our written specifications, delivery takes place from Bahnhofstrasse 28, 25421 Pinneberg. The costs and the risk of transport as well as the loading charges and packing costs are supported by the customer. This also applies for returns, see cipher 10. The customer is responsible for the observance of possible terms of exclusion, for example those of the German General Forwarding Conditions.
Transport packaging and other packaging shall not be taken back, acc. to the packaging ordinance, except for palets. Disposal costs are to be supported by the customer.
The delivery periods stated by us are agreed upon only as approximate. The beginning of the delivery period stated by us requires the clarification of all technical questions. Any agreed delivery time starts with the issue date of the respective order confirmation, however not before the customer the customer has provided us with all authorisations, clearances and receipt of any advance payments agreed upon. The delivery time is complied with, if the goods left our warehouse by the end of the delivery time or after given notice of readiness for dispatch.
In the event of industrial actions, in particular strike and lock-out, force majeure or other unforeseeable obstacles, which are beyond our control, any delivery times agreed upon shall be prolonged or postponed by such time period reasonably necessary, as long as such obstacles have an impact on the production or delivery of the goods to be delivered. This also applies for the case when subcontractors have to deal with such circumstances. The circumstances described above are no longer our responsibility, if they arise due to an already existing delay. The customer will be informed about the begining and the end of such obstacles as soon as possible.
We are entitled to reasonable part deliveries and invoice processing of such part deliveries.
In case of a delayed delivery on the basis of negligence, we are liable only to up to 5% of the total value of the invoice affected by delay, in either case limited to the predictable, typically occurring damages.
As long as the delay is caused by our deliberate and gross negligence, we take responsibility acc. to the legal procedures, however limited the predictable, typically occurring damages, as long as there’s no deliberate contract violation.
We take responsibility acc. to the legal procedures, as long as the underlying sales contract is a firm deal or if the customer is no longer interested in a further execution of the contract as consequence for the delayed delivery caused by us.
5. Quality inspection of the goods
The customer is due to examine the integrity of the goods, the conformity with the shipping documents and the order as well as the defects of the goods immediately and to claim deviations and defects in written form without delay. As long as there is no complaint on the part of the customer withing 4 work days from receipt of the goods, the delivery is considered contractually valid, unless the deviation was not noticeable, despite careful examination. Moreover, transport damages or missing parts are to be noted on the acknowledgement of receipt of the carrier, acc. to § 438 HGB (= German Commercial Code).
6. Prices and payment terms
The price mentioned in the order confirmation applies, otherwise, unless explicitly stipulated in writing, the price mentioned in our pricelist on the day of order placement.
All prices are understood net, ex works, plus VAT, costs for shipping and packaging.
We reserve the right to increase our prices accordingly, if cost increases are required especially by tariff agreements, material rising prices or currency fluctuations which occur after concluding the contract. On demand, we will account for this.
Unless explicitly stipulated otherwise, payment is understood as prepayment, due to be paid strictly net at the date of invoice. Should the customer delay payment, we are entitled – irrespective of other rights – a default interest on late payments amounting to 8% p.a. above the base lending rate acc. to German Civil Code (BGB) (so-called Basiszinssatz under German Law). All open receivables are immediately due to be paid in case of delayed payment on the part of the customer.
The delay of payments or the setoff because of possible counterclaims of the customer is only permitted if these counterclaims are legally effective or if they have not been contested on our part.
7. Retention of Title
Ownership of the goods delivered, that is both title in and right of disposal of, shall remain with us (hereinafter: retention of title) until full payment of all open accounts within the framework of our business relationship with the customer has been made.
The customer shall insure the goods under reservation against all typical risks, in particular against theft, fire and water damage, until he acquires full ownership.
The customer is entitled to resell the delivery items in the ordinary way of business; however, the customer is not entitled to pledge or to transfer them by way of security. Already at this time debts resulting from the resale of the items are assigned to us to the amount of the final amount invoiced. Furthermore, the customer is entitled to collect the assigned debts; our power to collect the debt ourselves is not affected by this regulation. However, we will not collect the assigned debts as long as the customer meets his obligations to pay by this regulation. We will not collect the assigned debts as long as the customer meets his obligations to pay from the collected proceeds, as long as he is not in arrears and has not filed a petition in insolvency or as long as he has not stopped his payments. We hereby accept the assignment. The customer is obliged to provide us with all and any details and information necessary to collect the assigned debts.
If necessary, the customer processes, manufactures or changes the conditional commodity for us. In case the conditional commodity is processed, connected to or mixed with other goods not belonging to us, we are entitled to the incurring co-ownership share of the new item in the ratio of the invoiced amount of the conditional commodity to the other items processed at the time of its processing, connecting or mixing. If the customer is the sole owner of the new item, it is hereby agreed that the customer transfers a proportional co-ownership to us. It will be kept for us at no charge. The above mentioned advance assignment is valid in the above mentioned cases only to the invoiced amount of the conditional commodity which is resold together with the other goods. In case the conditional commodity or the debts assigned in advance are pledged or accessed by third parties, the customer has to notify us immediately by indicating all information required for an intervention. Costs arising from this which can not be collected by the respective third parties are charged to the customer’s account.
We shall, at customer’s request, release securities, if and insofar as the realistic achievable value of the securities provided by the customer exceeds the whole of the securities by more than 20%.
8. Liability for defects
Warranty claims of the customer [Mängelansprüche] require that the commercial customer shall inspect the goods promptly upon delivery. Any warranty is excluded in case of selling second hand goods.
In case of well-founded notification of defects, the customer is obliged to seriously recourse to an out-of-court settlement if a manufacturer’s warranty exists before recoursing to TNG TradeandGlobe. TNG TradeandGlobe will support the customer in doing so. The other warranty claims of the customer remain unaffected.
In case and as far as the customer is not satisfied after such a claim, we are at first instance and upon our own choice entitled to fulfil the contract by correcting the faults or delivering substitute items. Exchanged goods or parts are our property and have to be returned to us. If we are not prepared or not in a position to fulfil the contract or if the fulfilment is delayed beyond reasonable times for reasons beyond our control or if the fulfilment is not successful for other reasons or if this is not reasonable for the customer, the customer is authorised either to withdraw from the contract or to request a reduction of the purchase price. Potential damage claims are regulated in cipher 9.
In case of a withdrawal from the contract, the customer has to set off the use advantages drawn up to the withdrawal from the contract. The use advantage up to the time of the withdrawal is calculated proportionally on the basis of the purchase price and the usual overall operating time of the goods, unless the use was restricted or not possible at all because of a fault. Both parties are free to prove a lower or higher use advantage. An unimportant fault does not entitle the customer to withdraw from the contract.
As far as the customer has the right to withdraw from the contract due to inadequate fulfillment and/or can claim damages instead of fulfillment of the contract or at least affirms this, upon our request, the customer will explain within an adequate period in writing if he asserts his rights or wants service provision until further notice.
If the examination of a notice of defects shows that there is no redhibitory defect, we are entitled to charge an expense/service lump sum. In this case the customer is free to prove lower expenses than those charged.
Warranty become time-barred within 12 months, calculated from the date of the passage of risks. Our handling of the customer’s notice of defect does not mean that the fault is acknowledged. The handling of this notice of defect will only lead to a suspension of the period of limitation to the extent as legal requirements exist. Thereby, the period of limitation will not restart. This applies also when we try to fulfill the contract correctly after the customer’s notice by repairing the defective products or delivering substitute items. A repair of defects only affects the period of limitation of the defective part as well as new defects resulting from this repair. As far as the goods are subject to a consumer goods purchase, the customer’s rights remain unaffected as per §§ 478 and 479 BGB (= German Civil Code) on condition that the customer has fulfilled his duty to examine the goods and to lodge a complaint as per § 377 HGB (= German Commercial Code).
9. Joint liability
Unless stated differently in the following, further-reaching claims of the customer – no matter what legal reasons for – are hereby excluded. Particularly we are not liable for any damage not resulting to the item itself, for lost profits or other economic loss of the customer.
This release from liability is not applicable in so far as the damage cause can be traced back to intentional default or to gross negligence by us or one of our agents or legal representatives or if we have neglected one of our essential duties of the contract. The release from liability is also not applicable if guaranteed qualities are missing and if the purpose of the guarantee was to provide the customer with cover against any damage not resulting to the delivery item itself.
Our obligation to pay damages in case of simple negligence is restricted to the foreseeable damage, in any case, however, to the amount covered by our product liability insurance. Upon the customer’s request, we are prepared to grant him insight into our insurance policy.
Claims are struck by the statute of limitations within 12 months as of the passage of risk. This is also applicable to claims for compensation resulting from indirect damage claims if no claims are put forward because of malicious silence with regard to a defect resulting from a tortious act or liability claims because of intention.
Any liability for damages exceeding the above mentioned scope is excluded – disregarding the legal nature of the claim. This is not applicable to claims resulting from a violation of life, body or health, claims as per §§ 1 and 4 of the Product Liability Law or to claims resulting from an offence or because an impossibility we are responsible for.
10. Returns
Returns are only accepted after our examination. Returns of second hand articles, defective goods and new products have to be delivered free of charge at TNG TradeandGlobe GmbH., Bahnhofstr.28, 25421 Pinneberg.
Unless specifically stipulated otherwise, we can process returns only if they are accompanied by a return data sheet indicating RMA and customer number. The customer can obtain such a return data sheet and the RMA number unpon request in writing or by phone at our company under phone +49 04101 777 485-0, Fax +49 04101 777 47-55 or online under www.tradeandglobe.com. The disclosure of the RMA number does not mean automatically that the deficiency or another complaint are acknowledged In any case, the customer bears the risk of the return shipment of the goods, including loss by accident. We will charge a storage lump sum in case of goods returned for which the customer is responsible, especially, however not exclusively, if the customer refuses to accept the delivery items.
11. Assignment
The assignment of any claims of the customer against us resulting from our business relationship can be effective only with our written agreement. This approval will not be refused unreasonably if the customer has a justified interest.
12. Export Controls
The goods we deliver are subject to export permits to the countries agreed upon with the customer. The reexport of the goods can be subject to authorisation for the customer and underlies the regulations of the Foreign Trade of the Federal Republic of Germany. The customer is obliged to obtain all necessaryexport licences or other documents before exporting such products. Any further delivery of products by the customer to third parties, with or without our acknowledgement, needs the simultaneous transfer of the terms and conditions of the export licence. The customer is responsible for the correct observance of these conditions.
13. Miscellaneous
Subsiadiary agreements require the written form in order to be valid. This applies also for the parties who waive the requirement of written notification. Should any condition or any other term within the framework of other contracts between the parties be or become invalid, the validity of all other conditions and contracts remain unaffected.
14. Place of Fulfillment and Jurisdiction, Applicable Law
Contractual place of performance regarding all and any deliveries and payments shall be at the seat of our company in Pinneberg.
Any and all disputes arising directly or indirectly under this contractual relationship shall be submitted to the German courts at our own venue. We shall be entitled, though, to bring legal actions against the customer at the courts having jurisdiction over the customer under the laws applicable at the seat of his company.
The entire agreement shall be solemnly and exclusively governed by and construed in accordance with the law of the Federal Republic of Germany, to the exclusion of United Nations Convention On Contracts For The International Sale Of Goods (CISG).
The executive board
Pinneberg, 09.11.2009
|
