General Terms and Conditions
of Friedr. Trurnit GmbH, Altena (henceforth referred to as EF-TE)
1. General Terms and Conditions
These conditions are valid only for business persons, legal persons under public law and public funds governed by public law. Deliveries will be made only in accordance with the following conditions - regardless of order value. These terms are valid in respect to on-going business and also future business, even if not expressly referred to, provided they have already been received by the customer. Purchase conditions or other conditions of the customer only apply if confirmed in writing by EF-TE.
All deliveries are subject to change without notice or after consultation with the customer. Terms of delivery begin after receiving all documents required for execution of contract and payment if so agreed upon (pre-payment). The delivery deadline is considered fulfilled upon receipt of the delivery advice note, even if the actual delivery is delayed or made impossible independent of negligence by the supplier. Appropriate partial deliveries as well as acceptable deviations of plus/minus 10% from the order quantity are permissible. If an agreed delivery term is not fulfilled and if EF-TE has not acted with gross negligence or intent, the customer is entitled to claim compensation for delayed completion or to withdraw from the contract, after an appropriate grace period and to the exclusion of further claims. The compensation for delayed completion is limited to a maximum of 10% of the part(s) not delivered in accordance with the contract. Withdrawal is not allowed in case the customer should delay acceptance. The customer bears the responsibility to provide proof of higher damage. a) In the case of delivery contracts on call orders, the customer shall inform us of binding amounts at least 1 month before the delivery date. In the case of call orders without a specific delivery period, manufacturing sizes or acceptance terms, EF-TE may require a binding commitment for these terms three months after conclusion of contract. EF-TE is entitled to set a grace period of two weeks in case the customer fails to provide this information within three weeks, After such time, EF-TE has the right to withdraw from the contract and/or claim damages. b) Additional cost caused by delayed order or subsequent changes of the order in regards to time or quantity made by the customer shall be bourne by the customer. The calculation of these additional cost shall be determined by us. Acts of God entitle EF-TE to delay delivery by the duration of the obstacle(s) followed by an appropriate start-up time or to withdraw from the contract in part or completely due to the unfulfilled parts. Strikes, lockouts or unpredictable, unavoidable circumstances, such as operational failure or shortage of raw materials disabling EF-TE to make prompt delivery despite all appropriate efforts shall be considered Acts of God. This stipulation also applies if the aforementioned conditions occur during a delay or affect a subsupplier. The customer may demand EF-TE to declare within two weeks of EF-TE would like to withdraw or deliver within an acceptable grace period. If EF-TE fails to respond to this demand, the customer shall be entitled to withdraw from any unfulfilled parts of the contract. EF-TE shall inform the customer immediately in case of Acts of God. EF-TE shall strive to keep the impairments of the customer as brief as possible.
3. Transfer of Risk
Risk of delivery is transferred from EF-TE to the customer with the dispatch of the merchandise. This also applies to partial deliveries.
EF-TE calculates prices in accordance with the valid pricing list for the individual product groups. For special projects, the agreed prices, confirmed by EF-TE in writing, shall apply. Unless confirmed otherwise in writing by EF-TE, the indicated prices apply ex works in Altena and do not include value added tax, postage, packaging and insurance. In case the customer does not provide packaging, it will be invoiced at cost. Packaging and shipping shall occur at the best discretion of EF-TE.
5. Payment Conditions
Invoices from EF-TE are to be paid in Euro within 10 days of the invoice date with 2% discount and to be paid net within 30 days of the invoice date, unless agreed otherwise. This also applies to partial deliveries.
6. Warranty and Notice of Defects
A notice of defects is to be made immediately in writing. In case of hidden defects, the notice is to be made immediately after discovery of the defect. In both cases, all claims for defects shall lapse 12 months after transfer of risk, unless agreed otherwise. In case the governing law requires longer time periods, they shall apply. All parts turning out to be defective due to circumstances before the transfer of risk shall be repaired or provided in new at no cost any by choice of EF-TE. The discovery of such defects shall be reported to EF-TE in writing immediately. Replaced parts become the property of EF-TE. The customer is required to provide to EF-TE the proper time and opportunity to carry out improvements after having informed EF-TE. Otherwise EF-TE is not liable for any consequences. The customer only has the right to remove the defects himself and/or by a third party and claim compensation from EF-TE in the case of urgent cases of danger of the operational reliability or for preventing major additional damages. EF-TE shall bear the cost of the improvement and/or replacement delivery including shipping and packaging as long as the customer claim turns out to be valid. The customer is entitled to withdraw from the contract within the frameworks of legal regulations if EF-TE does not remove the defects and/or deliver new parts within a reasonable period under consideration of legal exceptions. In the case of insignificant defects, the customer only has the right to a reduction of the contractually agreed price. The right to reduction of the contractually agreed price remains excluded otherwise. No warranty is granted in the special cases: Unsuitable or improper use, faulty assembly or operation by the customer and/or third parties, general wear and tear, improper use, storage or maintenance and unsuitable applications. In the case of improper removal of defects by the customer and/or third parties, EF-TE shall not be liable for the resulting consequences. The same shall apply for modifications made to the delivery item without prior consent from EF-TE. If EF-TE consulted the customer outside the contractual framework, EF-TE shall only be liable for functionality and suitability of the delivery item with explicit prior consent. If the customer is informed that the delivery of the merchandise by ET-FE may result in the violation of third party rights, the customer shall be obligated to inform EF-TE without delay. The same applies in case a third party takes recourse against the customer as a result of the sale of customer goods (§ 478 BGB).
7. Other Liabilities
If the delivery item cannot be used as contractually agreed due to negligence on the part of EF-TE due to defective application of suggestions and consultations before or during the conclusion of contract or due to violations of other contractual obligations, especially instructions for replacement of the delivery item, the customer is entitled to the following to the exclusion of further claims: For damages not to the delivery item itself, EF-TE shall only be liable in case of intent, gross negligence, in case of injury to life, body and health, in case of defects hidden maliciously or guaranteed not to occur, in case of defects to the delivery item as far as EF-TE is liable under the product liability law for damages to persons or material of privately used items. In case of culpable violation of the contractual obligations, EF-TE shall also be liable in case of gross negligence of non-management employees and in case of negligence limited to the damages to be foresee on the basis of the contract. Further claims shall be excluded.
8. Reservation of Title
EF-TE reserves the ownership of all delivered parts until all claims including all accessory claims have been paid by the customer in full, including all future claims. The customer has the right to further sell the delivered items as part of a normal business transaction under consideration of the reservation of title. The customer shall transfer immediately right now any claims resulting out of a further sale to a third party to EF-TE. This shall apply whether the merchandise was sold further to a third party after processing and/or modification or not. The customer retains the right to reclaim the claims transferred to EF-TE until retraction by EF-TE. EF-TE is obligated to not retract the claims as long as the customer has completed all invoice obligations in the proper way and timing. The customer shall not have the right to pledge, provide as security or dispose of otherwise the items delivered under reservation of title. EF-TE shall commit to releasing the securities to which EF-TE is entitled to the customer as long as the value of the complete claim of EF-TE towards th.e customer exceeds 20% Return of the merchandise subject to the reservation of title or a pledge of this merchandise by EF-TE is not considered as a withdrawal from the contract. In case EF-TE makes use of its reservation of title through reclaiming the merchandise, EF-TE shall be entitled to sell or auction off the merchandise directly. Reclaiming of the reserved goods will occur to the proceeds reached with a maximum of the agreed delivery prices. Further claims to damages, especially lost profits, remain reserved. In case the merchandise is reclaimed, a flat rate cost of 70% is agreed upon for merchandise with original packaging and part of current product selection. Merchandise which needs to be repackaged shall cost 50% and merchandise no longer part of the product selection shall cost 30% of the invoice amount. EF-TE also reserves the right to claim damages for the current, proven defects instead of a flat rate cost.
9. Offsets and Rights of Retention
The customer is only entitled to offsets of those claims recognized by EF-TE or determined by law. The same shall apply for the exercise of performance refusal and retention rights under consideration of the underlying claim of the customer.
10. Contract Changes
Contractual additions, changes or side agreements must be confirmed in writing by EF-TE in order to become valid.
Place of jurisdiction and fulfillment shall be Altena. EF-TE reserves the right to use its own place of jurisdiction for claims to the customer. Should one or several of the aforementioned provisions be or become invalid, the validity of the remaining provisions shall remain unaffected. Invalid or unenforceable provisions shall be replaced by those coming closest to the intended commercial purpose of the removed provision. Exclusively German Law shall be applied to the contractual relationship. The application of the Agreement of the United Nations from 11 April 1980 regarding contracts for the purchase of merchandise (CISG "Vienna Purchasing Right) shall be excluded. Data from customers and suppliers shall be stored and processed in accordance with the framework of the business relationship.