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TSD terms of sale and delivery

1. General − Field of application

a) The following conditions of sale apply exclusively to all goods and services. Other conditions which diverge from ours or conditions from the purchaser are only recognised if they have been expressly confirmed by us in written form.

The terms of the seller become effective as a part of the contract latest with the acceptance of the delivery.

b) The terms of sale and delivery of the seller are exclusively applicable. General terms and conditions of the purchaser are applicable only insofar as both the seller/purchaser have expressly agreed on it in written form.

2. Quotation − Contract conclusion

The quotations of the seller are without engagement and without obligation. Delivery terms of the buyer are only valid, if they have been confirmed in written form. Acceptances of offers need to have our written acknowledgement. That is also the matter for additions, sub-agreements and modifications.

The agreed price is the price which is valid on the day of delivery, plus taxes which are extra invoiced if they are not opposed to other separate agreements. We retain property rights and copyright on diagrams, drawings, calculations and other documents; they may not be made accessible to third parties. This applies in particular in case of written documents that are referred to as “confidential”; the purchaser requires our express statement before passing them on to third parties.

3. Duties of the buyer

If the purchaser exceeds the acceptance of the delivery the seller is authorized to withdraw from the contract and to claim compensation instead of service after setting a reasonable time.

In the latter case the seller is authorized to claim all in 5% of the invoice amount if the purchaser does not verify a minor loss; or the buyer can claim compensation of the actual loss sustained.

4. Online Shop Agreement

4.1 Access data
The Online Shop user confirms by log in to the Shop and accepting the terms and conditions and privacy policy that he/she will not pass the access data (customer id and password) on to a third party.

4.2 Note in the case of employees leaving the user company
The Online Shop user will inform the Trubatec GmbH immediately if an employee, who was familiar with the Shop, will leave the company. In this case a new password will be handed out.

5. Payment conditions

5.1 The invoice amounts have to be paid via bank debit memo or according to the terms of the seller which are agreed in the order confirmation resp. in the invoice. The payment periods named on the order confirmation and/or invoice, particularly with regard to the cash discounts, begin with the date of the invoice.

Agreed cash discounts are only allowed if there are no outstanding accounts. If the purchaser exceeds the payment term the seller is allowed to claim interest in the amount of 8% over the actual base rate. Default interest are promptly due. The purchaser can only count up or claim a right of retention for such accounts which are indisputable and legally binding.

5.2 Regardless of the agreed mode of payment the seller can ask for a viable security before delivery if there are serious concerns regarding the purchaser’s ability to pay or the purchaser’s credit worthiness after contract conclusion. This is also valid in case main items of the agreed terms of sale and delivery are not observed or there are basic changes in the business circumstances. If the purchaser refuses the viable security within a reasonable time the seller can withdraw from the contracts partially or completely. Advanced claims are left reserved.

5.3 Colleagues of the seller are only authorized for collection if they present a special information shown.

6. Delivery

6.1 The choice of transport is left to the seller under obliging discretion if there is no other instruction from the buyer. Carriage at the place of consignment, space freight as well as over freight caused by express deliveries and air freight deliveries are charged to the account of the buyer. In case of pick ups by the customer freight commissions are calculated under good terms from the seller’s point of view.

6.2 Concerning the weight of the delivery the declared weight which is measured at the dispatch of the goods is authoritative.

6.3 The agreed delivery time starts with the dispatch of the order confirmation but only if all the necessary documents and approvals from the purchaser are existent. If a delivery deadline is exceeded more than two weeks the buyer has the right to set a reasonable time of two weeks with threat of refusal. If the duty of delivery is failed until the end of the reasonable time the buyer has the right to withdraw from the contract. The rescission from the contract has to be done in written form immediately after expiration of the reasonable time; latest two weeks after the reasonable time has ended.

6.4 Unforeseen circumstances where no fault of the deliverer is involved which make the delivery or the transport impossible for more than three months the purchaser has the right to withdraw from the contract. There from unattached is the right of the seller to postpone the delivery until the impediments are disposed. The seller has to inform the buyer immediately about this circumstances. Goods which are already delivered in partial deliveries are considered as independent transactions. Because of the outstanding quantities the payment of the partial deliveries cannot be refused. In case of extension of the delivery due to the afore mentioned reasons the buyer has no right to set a delivery is caused by gross negligence claims for compensation are delimited to the typical predictable damage. For the rest, claims for compensation are excluded.

7. Transfer of risk

Unless specified otherwise the risk passes to the purchaser as soon as the delivery item leaves the suppliers’ works or stocks.

The buyer bears the risk for all the cancelled deliveries during the return transport as well as for the packaging during the round trip transport.

8. Liability for defects

8.1 Perceivable defects have to be indicated immediately to the seller; latest within eight days after receipt of the consignment at the place of destination. Samples of the rejected goods have to be send to the seller. If there is a material defect the buyer has the right to claim for remedy of the defect or additional delivery of the rejected goods unless otherwise agreed. If making good fails the purchaser has the right to reduce the payment or to withdraw from the contract. Within the removal of defects the agreed liability for defects is effective. As far as nothing different follows hereafter other further demands are impossible. This is also valid for claims for compensation which may result from neglecting of duties concerning the obligation and tortuous act. In case of premeditation or gross negligence the seller is liable according to legal requirements. The liability of the seller is delimited to the predictable typical defect that can happen unless there is no deliberately acting or negligence of the elements of the seller or unless there is no culpably negligence of a main contractual obligation. The liability for defects resulting from the product liability are unaffected. The limitation of liability as aforesaid has also no effect on the liability for all fatal and bodily injuries and damage to health. If the liability of the seller is excluded or limited this is also valid for his colleagues in case the buyer makes demands on them.

8.2 By accepting the delivery without any complaint through rail, ship or other freight carrier the liability of the seller because of non-appropriate packing or consignment is excluded as far as the seller is not liable obligatory because of premeditation or gross negligence.

8.3 The counseling for application technique on the part of the seller in spoken and written word is not binding; it also does not excuse the buyer from own testing of the acceptability of the product. This is valid for deliveries which are recommended for a certain purpose, too. Nevertheless there is a reason for liability of the seller the procedure follows according to the agreed liability for defects. Any property rights of third parties like application licenses and legal requirements with the handling of the delivery shall be in the responsibility of the buyer.

(1) The limitation period for titles of claims − whatever of which legal ground − is one year. This limitation period is valid also for other claims for compensation against the seller, independent of their legal ground. It is also valid as far as the claims for compensation are not in connection with a material defect.

(2) The limitation period according to para. 1 is valid with the following proviso:
a) The limitation period does generally not apply in case of premeditation.
b) The period acc. to para. 1 does not apply in case of fraudulent concealment of the seller, or, as long as the seller has accepted the guarantee for the condition of the delivery item.
c) The limitation period named in para. 1 does not apply to structures or plants whose success consists in the supply of design or monitoring services.
d) The limitation period for claims for compensation has also no effect in the case of bodily injuries, damage to health, personal freedom or claims according to the product liability act, in case of a gross negligence of duty or culpable breach of essential contractual obligation.

(3) The limitation period for all claims for compensation commences with the purchase.

(4) As far as it is referred to claims for compensation under this provision, also claims for compensation of unavailing expenses are concerned.

(5) Unless otherwise expressly specified, the legal requirements concerning the start of limitation, suspension and restart of the period remain unaffected.

(6) An amendment of the burden of proof to the disadvantage of the purchaser is not connected with aforesaid arrangements.

9. Retention of title

9.1 The goods remain our property until full payment of all amounts payable including interest and costs resp. The encashment of the here involved cheques and bills is completed which arise from the business relationship with the purchaser. The seller has the right to claim his retention of title through simple declaration. The retention of title is also binding for resale and goods which arise from further processing. If the purchased item is combined with other items that do not belong to us so that it cannot be separated, then we acquire joint ownership of the new item in the proportion of the value of the purchased item to the other items it is combined with at the time they are combined. The purchaser safeguards the sole ownership or joint ownership thus arising on our behalf. If the seller acquires no property in case several goods are combined the purchaser assigns a co-ownership share to the seller at that time according to paragraph 4 of this terms.

9.2 The purchaser is entitled, in the proper course of business to resell the item purchased. Every other use, especially the pledging of the goods or assignment by way of security or surrender of goods by bartering is forbidden. In case of distrait or other intervention by third parties, also after blending or processing of the goods that are subject to retention of title with items that do not belong to us the purchaser should notify us immediately. The buyer here and now assigns to us all amounts payable to the extent of the final invoice amount (including value added tax) accruing to him from the resale, further processing or installation from his purchaser or third parties, regardless of whether the purchased item has been resold or installed before or after processing. If the delivery is sold together with items which do not belong to the seller the assignment for the claim of the purchase price is only valid according to the amount of the value of the delivery.

9.3 The purchaser is revocable authorized to collect outstanding money which results of reselling the goods. The right to collect out standings and to process the goods expires without formal recall, if the buyer cancels his payment; in case of paragraph 4.2 of this terms a cheque- or bill protest or made garnishment. Here after incoming assigned out standings have to be collected on a special account with terms specially labeled by the seller. On the seller’s demand the buyer has to inform about the debtors of the assigned claim immediately in written form and to notify the debtors about the assignment. The seller undertakes to release the securities that he has at the purchaser’s request if the value of the securities are more than 20% higher than the debts being secured; the choice of the securities to be released is at the discretion of the seller.

9.4 If the purchaser’s behaviour is contrary to the terms of the contract, especially if there is a delay in payment, we are entitled to claim the total remainder of the debt immediately. In those cases the seller is authorized to claim for return of the consignment and to pick up goods at the place of the buyer according to § 107 paragraph 2 InsO. The buyer has no right for ownership. The seller is authorized to inform the customers of the buyer about the assignment of the claim which is transferred from buyer to the seller and to collect the receivables. Any return of goods take place as a precaution. That means no rescission although if partial payment is allowed afterwards.

10. Concluding conditions

10.1 If any part of these conditions of sale is found to be unlawful or invalid it shall not effect the validity or enforceability of the remaining conditions. The contracting parties undertake to reach an agreement by which the purpose of the unlawful or invalid condition can be achieved with the same end result.

10.2 Unless specified otherwise in the order acknowledgement, our place of business, Friedeburg, is the place of fulfilment.

10.3 German law applies with the exclusion of the UN trading law agreement (CISG) of 11th April 1980.

Die Anwendung des übereinkommens der Vereinten Nationen über Verträge über den internationalen Warenkauf wird ausgeschlossen.

AHLEN (Germany), JANUAR 2012

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