GT&Cs for use with consumers
1.1. Our deliveries, services and offers are provided solely on the basis of these General Sales Conditions. These form part of all contracts we conclude with our customers (hereinafter referred to as "Customer" or "Purchaser") in respect to the goods we offer.
1.2. Our sales personnel are not authorized to conclude verbal agreements with a Customer in connection with a contract should these deviate from the order form or from these General Terms and Conditions of Purchase.
Offer and conclusion of the contract
2.1. Offers and prices contained in brochures, advertisements and other advertising materials are subject to change and are non-binding.
2.2. The Customer is bound to an order signed by them and not yet accepted by us for 14 calendar days after sending. We are entitled to accept the offer within this period. The time when the Customer receives our acceptance evidences compliance with this period. Shipment of the ordered goods is also deemed valid acceptance.
III. Prices and payment.
3.1. Prices include VAT.
3.2. Unless otherwise expressly agreed in writing, our prices are based on collections from our warehouse, including packaging.
3.3. Payments can only be made at our offices or via wire transfer to our bank account. Technical personnel, drivers and sale’s personnel are not authorized to collect payments.
3.4. Acceptance of cheques evidences intent of payment only.
3.5. The Purchaser may only offset his own claims against our claims if the counter-claim is undisputed or legally resolved. The Purchaser is also entitled to exercise the right of retention due to counter-claims from the same contractual relationship.
IV. Delivery and delivery period
4.1. Unless a set deadline or set date is agreed in writing, our deliveries and services will be provided as quickly as possible, but at the latest within a period of approximately four weeks.
4.2. If we do not comply with the agreed delivery date, the Purchaser must set us a reasonable extension which may not, under any circumstances, be less than two weeks.
5.1. The goods are delivered from our warehouse. We only ship goods when agreed so in writing on an individual case basis.
5.2. Shipping costs will be paid by the Purchaser, which include the costs of pre-arranged transport insurance.
VI. Guarantee and liability
6.1. In case of defective goods, the Purchaser is entitled to their statutory rights.
6.2. Claims for compensation by the Purchaser due to obvious material defects of the delivered goods are excluded if they do not notify us of the defect within a period of two weeks after delivery of the goods.
6.3. Our liability for compensation of damages, regardless of the legal grounds (in particular in case of delay, defects or other breaches of obligations), is limited to contractually related, foreseeable damages.
6.4. The aforementioned limitations of liability do not apply in respect to liability due to wilful misconduct or gross negligence, pertaining to guaranteed aspects, injury to life or limb, damage to health or in accordance with product liability laws.
VII. Reservation of ownership
VII. Reservation of ownership
7.1. We retain ownership of the goods supplied until complete payment of the purchase price for these goods has been made. As long as we reserve ownership, the Purchaser is not permitted to sell the goods (hereinafter referred to as "reserved goods") or otherwise use the ownership thereof.
7.2. In case of third party claims, in particular by bailiffs, in respect to the reserved goods, the Purchaser shall notify them of our ownership and immediately notify us so we can enforce our ownership rights.
7.3. In case of breach of contract by the Purchaser, in particular in case of default of payment, we are entitled to demand the return of the reserved goods in as much as we have withdrawn from the contract.
GT&Cs for use with companies
1.1. Our deliveries, services and offers are provided solely on the basis of these General Terms and Conditions of Delivery. These form part of all contracts concluded between the Seller and contracting partners (hereinafter referred to as "Client") for the deliveries or services offered. They also apply for all future deliveries, services or offers to the Client, even if not separately agreed on again.
1.2. The terms and conditions of the Client or third parties do not apply, even if the Seller does not object to them separately on an individual case basis. Even if the Seller refers to correspondence that contains or refers to the terms and conditions of the Client or a third party, this does not constitute consent to the applicability of the said terms and conditions.
II. Offer and conclusion of the contract
2.1. All offers from the Seller are subject to change and are non-binding unless otherwise expressly identified as binding or they contain a specific acceptance deadline. The Seller can accept orders or assignments within fourteen days after receipt.
2.2. The written, concluded contract, including these General Terms and Conditions of Delivery is the sole basis for the legal relationship between the Seller and the Client. It fully expresses all agreements between the contracting parties regarding the goods supplied. Verbal commitments from the Seller prior to concluding this agreement are not legally binding and verbal agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in the latter that the former continue to apply as binding.
2.3. Supplements and amendments to the concluded agreements, including these General Terms and Conditions of Delivery must be made in writing to be valid. With the exception of directors or their authorised representatives, the Seller's employees are not authorized to make deviating verbal agreements. Transmission by fax complies with the requirements for the written form; however, telecommunication transmission, in particular, email, will not suffice.
2.4. Information from the Seller regarding the subject of the delivery or service (e.g. weight, dimensions, service values, load-bearing capability, tolerances and technical data) and our illustrations thereof (e.g. drawings and illustrations) are only approximations unless the suitability for the contractually intended purpose requires a precise submission. These are not guaranteed properties, but descriptions or identification of the delivery or service. Usual trade deviations and deviations resulting from legal provisions or technical improvements and replacing components with parts of similar quality are permitted if they do not impact on the suitability for the contractually agreed purpose.
2.5. The Seller retains ownership or copyright on all offers and cost estimates it provides, including drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents as well as supplementary materials provided to the Client. The Client may not give third parties access to the content of these goods, publish them, or use or reproduce them or allow third parties to do so. Upon request, the Client must return these goods to the Seller in their entirety and destroy any copies made if they are no longer required for the proper course of the business transaction or if the negotiation does not result in the conclusion of a contract.
III. Prices and payment
3.1. The prices apply to the goods to be supplied listed in the order confirmation. Additional or special services are charged separately. The prices are in EURO ex works, plus the costs of packaging, applicable VAT and, for export deliveries, customs duties and fees and other official duties.
3.2. If the agreed prices are based on the Seller's list prices and the delivery is to be carried out more than four months after the conclusion of the contract, the Seller's list prices upon delivery (each less any agreed percentage or fixed discount) shall apply.
3.3. Invoice amounts are payable within thirty days without any deductions, unless otherwise agreed in writing. The relevant date of payment is the date of settlement to the Seller. Cheques are not considered payment until they have been cleared. If the Client does not pay by the due date, outstanding amounts shall be charged interest at 5% per annum from the due date; the application of higher interest rates and additional damages in case of default remains unaffected.
3.4. The offsetting of our claims by the counter-claims of the Client or retaining payment due to such claims is only permitted if the counter-claims are undisputed or legally resolved.
3.5. The Seller is entitled to only carry out or provide pending deliveries or services against prior payment or deposit if, after the conclusion of the contract, the Seller becomes aware of circumstances that significantly reduce the Client's creditworthiness and due to which payment of the Seller's outstanding receivables from the relevant contractual relationship (including from other individual orders, for which the same framework agreement applies) are endangered by the Client.
IV. Delivery and delivery period
4.1. Deliveries are ex works.
4.2. Deadlines and terms proposed by the Seller in respect to deliveries and services are always considered approximations, unless a fixed deadline or date is expressly confirmed or agreed to. If shipment has been agreed, the delivery deadlines and dates refer to the time at which the goods are transferred to the freight forwarder or carrier or other third party commissioned for the transport.
4.3. The Seller, notwithstanding their rights resulting from the Client being in default, can call for an extension of the delivery and service deadlines or a delay of the delivery or service dates in the same amount of time by which the Client has not fulfilled their contractual obligations toward the Seller.
4.4. The Seller is not liable for impossible deliveries or delays, if these are the result of force majeure or other events unforeseeable at the time when the contract was concluded (e.g. operational interruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, legal lockouts, insufficient labour force, energy or raw materials, difficulties in procuring the necessary official permits, official measures or absence, incorrect or late delivery by suppliers) for which the Seller is not responsible. Should such events make it significantly more difficult or impossible for the Seller to carry out the delivery or provide the service and the hindrance is not of a temporary nature, the Seller is authorized to withdraw from the agreement. In case of temporary hindrances, the delivery or service deadlines are extended or the delivery or service dates are delayed concomitant with the duration of the delay plus a reasonable run-up time. If it is unreasonable for the Client to accept the delivery or service as a result of the delay, they can withdraw from the agreement immediately by means of a written declaration to the Seller.
4.5. The Seller is only authorized to make partial deliveries if
the partial delivery is usable by the Client for the contractually intended purpose, the delivery of the remaining goods ordered has been secured and the Client does not incur any significant additional expenses or costs (unless the Seller declares it is prepared to bear these costs).
4.6. If the Seller is in default of a delivery or provision of service, or if a delivery or service is impossible for whatever reason, the liability of the Seller for compensation of damages is limited in accordance with Clause 8 of these Terms and Conditions.
V. Place of fulfilment, shipping, packaging, transfer of risk, acceptance
5.1. The place of fulfilment of all obligations resulting from this contractual relationship shall be Arnsberg unless otherwise specified. Should the Seller also be obligated to perform an installation, the place of fulfilment shall be the location at which the installation is to be performed.
5.2. The shipping type and packaging are subject to the Seller's obligatory discretion.
5.3. The risk is transferred to the Client, at the latest, when the goods to be supplied (in terms of which the start of loading is decisive) are transferred to the freight forwarder or carrier or other third party commissioned with the transport. This also applies if partial deliveries are made or the Seller has accepted other services (e.g. shipping or installation). If the transport or transfer is delayed as a result of circumstances caused by the Client, the risk is transferred to the Client on the day on which the goods to be supplied are ready for delivery and the Seller has notified the Client thereof.
5.4. Storage costs shall be paid by the Client after the transfer of risk. If the Seller stores the goods, the storage costs shall amount to 0.25% of the invoice amount of the goods supplied to be stored per complete week. The assertion and proof of additional or reduced storage costs remain reserved.
5.5. The shipment shall only be insured against theft, breakage, transport, fire and water damage or other risks upon the express request of the Client and at the Client's expense.
5.6. If an acceptance is to be performed, the goods supplied shall be considered accepted if
the delivery and, if the Seller is obligated to perform installation, the installation has been completed,
the Seller has notified the Client of this with a notification regarding the assumed acceptance in accordance with this Clause 5.6 and has requested the Client's acceptance,
twelve business days have passed since the delivery or installation or the Client has begun using the goods supplied (e.g. the delivered system has been commissioned) and in this case, six days have passed since the delivery or installation, and
the Client has refrained from accepting within this period for a reason other than due to a defect, about which the Seller was notified, which makes the use of the goods supplied impossible or significantly restricts its use.
VI. Guarantee, material defects
6.1. The guarantee period is one year from the date of delivery or, if an acceptance is required, from the date of acceptance.
6.2. The goods supplied must be carefully inspected immediately after delivery to the Client or to a third party appointed by the Client. They are considered approved if the Seller has not received any written notice of defects in compliance with Clause 2.3 with regards to obvious defects or other defects identifiable during an immediate, careful inspection, within seven business days after delivery of the goods supplied or otherwise, within seven business days after discovering the defects or at any earlier point at which the defect was identifiable to the Client during normal use of the goods supplied without closer inspection. Upon request of the Seller, the goods supplied pertaining to the complaint must be returned to the Seller, carriage paid. In case of a justified notice of defects, the Seller shall compensate the costs concomitant with the most inexpensive shipping method; this does not apply if the costs have been inflated because the goods supplied is located at a location other than that of the location specified for the intended use.
6.3. In case of material defects of the delivered object, the Seller is obliged and entitled to repair or replace it within a reasonable period; this decision is at the discretion of the Seller. If the repair or replacement fails, i.e. it is impossible, unreasonable, refused or there are unreasonable delays, the Client can withdraw from the contact or reduce the purchase price by an appropriate amount.
6.4. If a defect is the fault of the Seller, the Client can demand compensation for damages based on the conditions defined in Clause 8.
6.5. In case of defective components from other manufacturers, which the Seller cannot remedy due to licensing laws or material reasons, the Seller shall either enforce his guarantee claims against the manufacturer or supplier on behalf of the Client or transfer ownership to these claims to the Client; this decision is at the discretion of the Seller. Guarantee claims against the Seller only exist for these kinds of defects under other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer or supplier has been unsuccessful or is pointless due to, e.g. insolvency. For the duration of the legal dispute, the statutory prescription period in respect to the respective guarantee claims of the Client against the Seller is suspended.
6.6. The guarantee becomes invalid if the Client modifies the goods supplied or has them modified by a third party without the Seller's consent, thus making it impossible or unreasonable to remedy defects. In each case, the Client must bear the additional costs of remedying defects resulting from the modification.
6.7. Delivery of used objects agreed upon with the Client on an individual case basis are carried out under the exclusion of any and all guarantees for material defects.
VII. Property rights
7.1. In accordance with this Clause 7, the Seller shall ensure that the goods supplied are not subject to any commercial property rights or third party copyrights. Each contracting partner shall immediately notify the other contracting party in writing if claims against the former are brought due to the infringement of such rights.
7.2. If the goods supplied infringes industrial property rights or third party copyrights, the Seller, at its discretion, shall modify or replace the goods supplied at its own expense so that third party rights are no longer infringed, however, the goods supplied shall continue to fulfil its contractually agreed functions or the Seller shall obtain usage rights for the Client by concluding a licensing agreement. If this is not successful within a reasonable period of time, the Client is authorized to withdraw from the contract or reduce the purchase price accordingly by an appropriate amount. Any and all claims for damages from the Client are subject to the limitations in Clause 8 of these General Terms and Conditions of Delivery.
7.3. In case of an infringement of products from other manufacturers delivered by the Seller, the Seller shall, at its discretion, enforce claims against the manufacturer and sub-suppliers on behalf of the Client or transfer this ownership to the Client. Claims against the Seller exist in these cases in accordance with Clause 7, only if the legal enforcement of the aforementioned claims against the manufacturer or sub-supplier has been unsuccessful or are pointless due to, e.g. insolvency.
VIII. Liability for compensation due to default
8.1. The Seller's liability for compensation, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, contractual breaches, breaches of obligations during contract negotiations and action in tort is, insofar as fault is relevant, limited in accordance with this Clause 8.
8.2. The Seller is not liable in cases of simple negligence by its agencies, legal representatives, employees or other assistants insofar as these are not cases of breaches of essential contractual obligations. Essential contract obligations include the obligation of punctual delivery and installation of the delivery object without significant defects, and consultation, protection and care obligations intended to allow the Client the contractual use of the goods supplied or which serve the purposes of protecting life and limb of the Client's personnel or protecting the Client's property from significant damages.
8.3. If the customer is liable for compensation in accordance with Clause 8.2, this liability is limited to damages the Seller foresaw as potential consequences of a breach of contract upon conclusion of the contract or which he should have foreseen when applying standard due diligence. Indirect damages and consequential damages resulting from defects in the goods supplied are also only subject to compensation of damages if such damages are typically to be expected if the goods supplied are properly used as intended.
8.4. In case of liability for simple negligence, the Seller's obligation to provide replacement for material damages and resulting further property damages is limited to EUR 100,000.00 per claim (in accordance with the current coverage sum of the Seller's product liability insurance or liability insurance policies), even if there has been a material breach of contractual obligations.
8.5. The aforementioned exclusions and limitations of liability apply to the same extension favour of the agencies, legal representatives, employees and other agents of the Seller.
8.6. If the Seller provides technical information or acts as a consultant and this information and consultation is not included in the contractually agreed scope of services, this shall be done free of charge and under the exclusion of any and all liability.
8.7. The limitations in Clause 8 do not apply to the liability of the Seller due to deliberate actions, for guaranteed characteristics, injury to life or limb or damage to health or in accordance with the product liability laws.
IX. Reservation of ownership
9.1. The reserved ownership agreed below serves to secure all existing, current and future claims by the Seller against the Client resulting from the supply relationship existing between the contracting partners (including balance claims from a current account relationship limited to one of these supply relationships).
9.2. The goods supplied by the Seller to the Client remain the property of the Seller until complete payment of all secured claims has been made. These goods as well as the goods included in the reservation of ownership which replace them in accordance with this Clause, shall hereinafter be referred to as ‘reserved goods’.
9.3. The Client shall store the reserved goods safe for the Seller free of charge.
9.4. The Client is authorized to process and dispose of the reserved goods in proper business transactions until a case of enforcement arises (Clause 9.9). Pledging as collateral and transfer by way of security are not permitted.
9.5. If the reserved goods are processed by the Client, it is agreed that the processing is carried out on behalf of and for the benefit of the Seller as the manufacturer and the Seller shall directly acquire ownership or, if the processing uses materials from several owners or the value of the processed item is higher than the value of the reserved goods, the Seller shall acquire joint ownership (fractional ownership) of the newly created item in a ratio concomitant with the value of the reserved goods in respect to the value of the newly produced item. If no such acquisition of ownership occurs, the Client herewith transfers their future ownership or joint ownership, in the aforementioned ratio, of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to create one unified item and if one of the other items constitutes the primary item, the Seller, if he owns the primary item, shall transfer the joint ownership of the item to the Client pro rata in accordance with the ratio defined in Clause 1.
9.6. If goods subject to reserved ownership are resold, as security, the Client herewith transfers the resulting claims against the purchaser to the Seller, or in case of joint ownership of the Seller of the reserved goods, pro rata, in accordance with the joint ownership share. The same applies to other claims that arise in place of the goods subject to reserved ownership or which arise otherwise with regards to the goods subject to reserved ownership, e.g. insurance claims or claims resulting from unauthorized action in case of loss or destruction. The Seller authorizes the Client, subject to revocation, to collect claims transferred to the Seller on his own behalf. The Seller may only revoke this authorization to collect in case of enforcement.
9.7. If third parties have access to the goods subject to reserved ownership, in particular due to seizure, the Client shall immediately notify them of the Sellers ownership rights and inform the Seller thereof to allow the Seller to enforce its ownership rights. If the third party is not capable of compensating the Seller for the costs incurred for legal or out of court costs incurred in this context, the Client shall be liable to the Seller for these costs.
9.8. The Seller shall release the reserved goods and the items replacing them or claims standing in their stead upon request and at their discretion if the value of the goods exceeds the secured claim by more than 50%.
9.9. If the Seller withdraws from the contract due to a breach of contract by the Client, in particular payment default (enforcement case), the Seller is authorized to demand the return of the goods subject to reserved ownership.
X. Final provisions
10.1. The court which shall have jurisdiction over any and all disputes resulting from the business relationship between the Seller and the Client is Arnsberg or the location of the Client's seat; this decision is at the discretion of the Seller. The sole court which shall have jurisdiction in respect to claims against the Seller is in Arnsberg. Mandatory legal provisions regarding sole courts of jurisdiction remain unaffected by this provision.
10.2. The relationship between the Seller and the Client are subject solely to the laws of the Federal Republic of Germany. The United Nations Convention on Agreements for the International Sale of Goods dated April 11, 1980 (CISG) shall not apply.
10.3. If the agreement or these Terms and Conditions of Delivery contain regulatory gaps, the legally applicable provisions which the contract partners would have agreed upon in accordance with the economic goals of the agreement and the purpose of these General Terms and Conditions of Delivery had they known of the regulatory gap, shall apply.
Tillmann & Köckmann GmbH & Co. KG 2013
The Client acknowledges that the Seller stores data resulting from the contractual relationship in accordance with § 28 Bundesdatenschutzgesetz (German Data Protection Act) for the purposes of data processing and reserves the right to transmit the data to third parties insofar as required to fulfil the agreement (e.g. insurances).