General Terms and Conditions
I. The Basis of the Order
1. Our general terms and conditions below shall form the basis for each order placed by or with us. The orderer shall confirm a knowledge of it and issue its consent to its operation.
2. Provisions amending or contradicting these general terms and conditions shall only be binding based upon our written confirmation.
3. Terms and conditions contradicting our general terms and conditions shall not oblige us unless we explicitly recognize them in writing. It shall not require our objection to differently worded general terms and conditions.
4. The documents that form a part of the quotation such as illustrations, drawings, dimensional information or the like shall not be binding to the extent that we do not explicitly designate them as binding.
We shall retain the right of ownership and copyright to cost estimates, drawings and miscellaneous documents. Said documents may not be made available to third parties.
5. The orderer shall bear the risk of faulty transmission with telegrams, faxes, e-mails and telephone calls.
II. Order Placement
1. If a written contract does not materialize, the order is issued by us or with us if we confirm it in writing while sending our general terms conditions.
2. Our quotations shall be subject to change without notice. The orderer shall be committed to its order eight weeks after receipt.
3. Written and verbal information, descriptions, cost estimates and the like shall not be binding with reference to the subject matter of the order as long as we have not explicitly declared that they are binding when the contract is signed or the order is confirmed.
4. We shall be entitled to make changes when manufacturing the subject matter of delivery if the changes do not impair the performance desired by the orderer.
5. Assigning rights and duties from contracts signed with us shall always require our consent. The orderer shall continue to be obliged until compliance by the third party.
6. Written announcements to our customers shall be deemed as received as per the normal course of mail if they were sent to the address last known to us. Any dispatch shall be deemed as having been sent if we have an initialled copy of the announcement.
III. Price and Payment
1. In the absence of other written agreements, our prices shall be charged in euros and shall be paid in this currency.
2. The orderer shall additionally pay the value-added tax even if designations are used such as “fixed-price”, “total price” or the like. We shall be entitled to charge the turnover tax rate applicable at the point in time of the delivery.
3. Our prices shall apply from the supplying factory. The orderer shall also pay additional costs for packaging, insurance or the like.
4. Our price lists shall apply if price arrangements have not been made.
5. Payment shall be made within 10 days after the date of invoice. The prices in our price list are net plus value-added tax. If the invoiced value of goods is below 150 euros net, we shall charge 20 euros as a lump sum cost for minor quantities and processing expenditures.
6. It shall be charged at the prices applicable on the day of delivery. In the event that raw material prices, wages and salaries rise including miscellaneous cost factors, we shall be entitled to demand an appropriate additional price without a particular announcement, although in this event the orderer shall be entitled to a right to withdraw from the contract.
7. Payments can only be made to us for discharging indebtedness, unless we provide written confirmation to the contrary.
Bank fees shall be at the expense of the orderer and interest shall not be paid on down payments.
8. As soon as the payment becomes due, we are allowed to demand 8% default interest above the base rate. Further claims caused by damages due to late payments remain unaffected by this agreement.
9. There shall only be a right of retention or rights arising from a commission in relation to our claim to payments with reference to claims of the orderer that we do not dispute or claims of the orderer that are final and conclusive. All other claims shall be ruled out.
IV. Delivery Periods
1. The delivery periods stated in the written contract or in our written order confirmation shall only commence when the orderer procures the documents that it is supposed to procure or has provided whatever else it has to furnish to carry out the order. Otherwise, they shall not commence before furnishing the first partial payment.
2. A delivery period shall be deemed as met by us if the subject matter of the delivery has left the factory by its expiration or the orderer has been notified that it is ready to be shipped.
3. In any event, any delivery period shall be extended by the period that the orderer is in default with its obligations toward us.
4. The delivery period shall be extended by the period of the hindrance or an appropriate warming up time with any kind of plant interruptions, in particular due to strikes or lockout, force majeure or miscellaneous unforeseen circumstances, regardless of whether this is with us or our suppliers.
In this event, we shall be further entitled to withdraw from the contract in whole or in part unless we or our suppliers are culpable of intentional or grossly negligent contract violation, provided that they are our vicarious agents in relation to the orderer.
We shall also not be responsible for the above-mentioned circumstances if they occur during already existing default.
5. There shall also be an appropriate extension of the delivery period if the contract is subsequently amended.
6. The orderer shall not have any claims to compensation for damage in any cases of late delivery or service.
The orderer shall take the goods to be delivered, even if they are delivered late.
7. If the shipment is delayed at the request of the orderer, it shall be invoiced the costs incurred by storage starting 1 month after notification of the goods being ready for shipment, however at least one half percent of the invoiced sum for each month if it is stored in our factory. We shall be entitled to otherwise dispose of the subject matter of the delivery after setting an appropriate extension and after it expires fruitlessly and to
otherwise supply the orderer with an appropriately extended period.
V. Shipment, Passing of Risk and Receipt
1. The subject matter of the delivery shall be shipped at the expense and at the risk of the orderer, even if the shipment is not carried out from our company.
2. We shall insure the subject matter of the delivery at the instruction of the orderer and at its expense.
3. If the shipment is delayed due to circumstances that the orderer is responsible for, the risk shall pass onto the orderer from the day that the goods are ready to be shipped.
4. The subject matter of the delivery shall be deemed as delivered to the orderer when the carrier takes it.
The risk shall pass onto the orderer when the subject matter of the order leaves our company or our supplier’s company if the orderer uses its own means of transportation.
5. The orderer shall take objects delivered, even if they have nonessential defects, notwithstanding its rights pursuant to item VII.
VI. Reservation of Title
1. The subject matter of the order shall remain our property until all of our claims from the business relations with the orderer have been met, even if payments are made on particularly designated claims.
2. We shall be entitled to insure the subject matter of the delivery for theft as well as fire, water and miscellaneous damage at the expense of the orderer to the extent that the orderer cannot prove that it took out said insurance.
3. The orderer shall be revocably allowed to further sell the subject matter of the delivery in the framework of ordinary business operations, however not to pledge it or transfer the ownership of it by way of security. The orderer shall assign its claims from further sales to us at the amount of our claims to secure our claims.
4. The orderer has to notify us in writing without delay of execution or miscellaneous seizure of third parties on the subject matter of the order.
5. If the orderer acts in violation of the contract, in particular if the orderer comes into default of payment, we shall be entitled to take back the subject matter of the delivery and the orderer shall surrender the subject matter of the delivery to us at our request.
When we assert said retraction demand and pledge the subject matter of the delivery, this shall not be deemed as withdrawing from the contract unless we explicitly declare said withdrawal.
6. In the event that we assert the reservation of title, we shall be entitled to exploit the subject matter of the delivery along with the accessories via sales by private contract or auction. The proceeds shall be paid to the orderer after deducting the costs to the extent that neither we nor a third party are entitled to them.
The orderer shall only have warranty claims if the orderer correctly complies with its duty to examine and provide notification of defects owed pursuant to Section 377 of Handelsgesetzbuch (the Commercial Code). We shall be liable for defects in our performance excluding other claims and notwithstanding the rights of the orderer pursuant to item X according to the specification of the provisions below:
1. If notification of defects is justified, we shall be obliged to post-compliance excluding the rights of the orderer to withdraw for contract or diminish the purchase price (diminution) unless we are entitled to reject post-compliance pursuant to the statutory regulations. The orderer has to grant us an appropriate for post-compliance. Post-compliance can be
carried out at our choice by rectifying the defect (defect rectification) or supplying new goods. We shall pay any required expenditures in the event of defect rectification to the extent that they are not increased when the subject matter of the contract is at a different place than the place of performance. If the post-compliance failed, as far as due to the
obeject of agreement, further post-comliances are adequate and rasonable fort he purchaseses, the orderer can only asserts claims to compensation for damage due to the defect if post-compliance fails.
2. At our choice, repair of the subject matter of the delivery or its defective components shall either be carried out by us or at an organisation to be specified by us at no cost. The same shall also extend to replacing defective components.
3. All warranties shall be rendered invalid:
a) if defects or damage may be attributed to natural wear and tear, incorrect handling, incorrect storage, the effects of force or miscellaneous damaging factors provided that these causes do not arise from our culpability;
b) if the subject matter of the delivery was changed by third parties or by linking it with components of a foreign origin;
c) if the orderer did not follow our operating or service rules;
d) if the subject matter of the delivery was given over to purposes other than those stated in the order or dissimilar purposes;
e) if the subject matter of the delivery was used outside of the normal or usual operating circumstances.
4. The order has to give us sufficient time and opportunity to make all repairs and replacements that appear necessary to us ex aequo et bono; otherwise, we shall be exempt from the warranty obligation.
The orderer shall only have the right to rectify the defect itself or have third parties rectify it and demand reimbursement of the necessary expenditures in urgent cases of jeopardizing operational safety and to avert disproportionately great damage, where we shall be notified immediately in this case, or if we are in default with defect rectification.
5. Of the immediate costs from repair or replacement, we shall pay the expenditures for the replacement part including shipping to the extent that the complaint turns out to be justified. The orderer shall pay the other costs.
The orderer shall be entitled to send us the defective subject matter of the delivery or its defective components at its cost and at its risk. In this event, the object of the delivery or its components shall be sent back to the orderer at the orderer’s risk after completing repair. The orderer shall pay the costs necessary for return and has to advance them at our request.
The period for liability for defects for the subject matter of the delivery shall be extended by the period of the interruption to operations caused by defect rectification.
6. The orderer shall not have any other claims, in particular claims to compensation for damage not incurred on the subject matter of delivery itself, and compensation for a loss of production and the like.
7. If only parts of the subject matter of delivery are defective, our warranty obligation shall be limited to said parts. Even in the event of the failure of repair or replacement, the orderer shall only be entitled to repudiation of contract and diminution with regard to the defective components.
1. Claims to compensation for damage shall be ruled out against us with contractual relationships with fully-qualified merchants and public clients for compensating for direct and indirect damage, regardless of the legal grounds, including from positive contract violation and unauthorised actions, to the extent that we are not culpable of intent. Claims to compensation for damage shall also be ruled out against employees of our company and other vicarious agents, regardless of the degree of culpability.
2. Claims to compensation for damage shall be ruled out against us with contractual relationships with small merchants or non-merchants for compensating for direct and indirect damage, regardless of the legal grounds, including from positive contract violation and unauthorised actions, to the extent that we are not culpable of intent or gross
negligence. Claims to compensation for damage shall also be ruled out against employees of our company and other vicarious agents, regardless of the legal grounds, to the extent that they are not culpable of intent or gross negligence.
IX. The Orderer’s Right to Withdraw
1. The orderer can withdraw from the contract when it is finally impossible for us to furnish the entire performance before the risk passes. The same shall apply with our incapacity to comply.
The orderer can also withdraw if it is impossible to execute one part of the delivery with an order of similar objects and it has a justified interest in rejecting partial delivery; if this is not the case, the orderer can correspondingly diminish the counterperformance.
2. If the impossibility of executing the order arises from the information of the orderer or if the orderer is otherwise responsible for the impossibility of executing the order, the orderer’s right to withdraw from the contract pursuant to item 1 shall be rendered invalid.
3. If there is statutory delay in performance as defined by item IV and if the orderer grants us an appropriate extension with the explicit declaration that it will reject the acceptance of the performance after the expiration of this period, and if the delivery is not made within said extension, the orderer shall also be entitled to withdraw from the contract.
4. If impossibility occurs during the orderer’s default in acceptance or due to its culpability, it shall remain obliged to counterperformance.
5. All other and further claims of the orderer, in particular to repudiation of contract, notice, diminution and compensating for indirect and direct damage, shall be ruled out notwithstanding the claims of the orderer pursuant to item VII.
X. Our Company Withdrawing from the Contract
We shall be entitled to withdraw from the contract if we recognize the impossibility of executing the order. In this event, we shall notify the orderer without delay.
If the orderer is a fully-qualified merchant or public client, it shall not be entitled to any claims to compensation, regardless of the legal grounds, against us if we declare withdrawal.
If the orderer is a small merchant or non-merchant, it shall not be entitled to claims to compensation, regardless of the legal grounds, if we withdraw from the contract unless we or our vicarious agents are culpable of intent and gross negligence.
XI. Authoritative Law
German law shall be exclusively authoritative for every business relationship and the legal consequences arising from it.
XII. Partial Nullity
The legal consequences of Section 139 of Bürgerliches Gesetzbuch (Civil Code) shall be concluded both with reference to our general terms and conditions and for any particular contractual arrangements between us and the orderer.
XIII. Place of Performance and Venue
The place performance and venue for deliveries and payments (including legal action based on checks and bills of exchange) and all disputes arising between us and the orderer from the purchase agreements concluded between us and it shall be our headquarters. However, we shall also be entitled to lodge civil action against the orderer at its place of residence and/or place of business.
TESIMAX – Altinger GmbH
75242 Neuhausen – Steingegg
VAT Reg. No.: DE 144201780
Mr. S. Altinger / Mrs. S. Egner