General Terms and Conditions of Delivery and Sale
1. As a rule, initial offers are made free of charge. Additional offers and engineering services are only free of charge, if a legally effective supply contract is concluded and remains effective.
2. The documents pertaining to an offer, such as illustrations, drawings, specifications as to weights and dimensions are authoritative on an approximate basis, unless they are explicitly stated as binding. The supplier reserves title and copyrights as to cost estimates, drawings and other records and they may not be made available to third parties. The supplier is bound to make plans classed as confidential by the customer available to third parties subject to the customer’s consent.
II. Delivery Scope
The supplier’s written acknowledgement of order is authoritative for the scope of the delivery. Additional agreements and modifications require written confirmation by the supplier. The packaging forms part of the delivery and cannot be returned.
Call orders are concluded for a maximum term of one year on principle. Should delivery of the goods ordered on the basis of a call order not be taken within this period, the call order shall become invalid; in such a case, the respective call order shall be cancelled by us without further notice and the goods which failed to have been taken delivery of by then, shall be billed subsequently based on the list prices and the usual discount rates, respectively.
The cancellation of orders is admissible only subject to our consent and against compensation for the damage suffered by us. Upon order cancellation we reserve the right to impose cancellation charges for the processed and otherwise not usable material and engineering services already rendered. We reserve the right to claim any additional damages. Obvious errors and mistakes made in offers, order confirmations or invoices may not be considered by us. We shall have to reject any legal claims arising from inadvertent specifications given, which are in clear contradiction to our other sales documents.
III. Payment shall be made within 14 days 2 % or 30 days net as from the invoice date, unless agreed otherwise. With respect to orders for installations (aggregates) totalling a purchase price in excess of EUR 5,000.00 per installation, payment shall have to be made as follows:
1/3 upon receipt of our acknowledgement of order,
1/3 upon dispatch advice,
1/3 30 days after invoice date.
Installation costs are payable immediately, strictly net.
In case the period allowed for payment is exceeded, a 3 % interest above the relevant discount rate set by Deutsche Bundesbank shall be charged. Discount charges shall be borne by the buyer. The right to claim additional damage due to delay in performance is reserved. We reserve the right to accept bills of exchange; acceptance shall be made without liability for timely protesting against the B/E and only on the basis of putting forward the expenses for collection. Delivery to new customers shall be made exclusively against payment in advance or upon COD basis until satisfactory references have been submitted. Customers not meeting the due date for payment shall have to expect cash on delivery consignments with respect to following deliveries. Until full payment of invoice amounts due including interest on arrears has been made, we shall not be obligated to make any further delivery pertaining to any contract. Should the customer come into arrears with respect to a payment due or if unfavourable information on the financial standing of the customer becomes known, we shall be entitled to demand payment in cash for all deliveries not yet effected, with the due date for payment becoming void, prior to delivery or safeguarding of payment of the purchase price and immediate payment of all invoiced amounts not yet due, even if bills of exchange were provided.
Repair costs are payable immediately, strictly net.
The withholding of payments due to any counterclaims not recognised by the supplier is not permissible – equally the offsetting against those.
IV. Delivery Period
1. The delivery period starts with the posting of the acknowledgement of the order, however, not until the purchaser has submitted the required documents, permissions and releases and receipt of an agreed down-payment.
2. The delivery period shall be deemed as observed, if the item to be delivered has left the works or its dispatch has been communicated prior to the end of the supply period.
3. The delivery period shall be adequately extended in the event of unforeseen hindrances beyond the intentions of the supplier – all the same, whether they occurred at the supplier’s works or his sub-suppliers -, e.g. operational disturbances, spoilage, delays in the supply of essential raw and building materials, in as far as such hindrances have a demonstrable bearing on the completion or dispatch of the delivery item. The supplier shall not be accountable for the aforementioned circumstances, if they arise while delivery is already delayed. In relevant cases, the supplier shall inform the purchaser of the onset and passing of such hindrances in due course.
4. Should the dispatch of the goods be delayed upon the purchaser’s request, the costs incurred through storage shall be charged to the purchaser, if the goods are stored at the supplier’s premises, at the minimum at ½ pc of the invoice amount per month, starting one month after notice of readiness for shipment.
However, the supplier shall be entitled to dispose of the delivery item otherwise, after having set a time limit and its unsuccessful expiration, and to supply the purchaser at an appropriately extended deadline.
5. Compliance with the delivery term requires fulfilment of the contractual obligations by the purchaser.
V. Passing of Risk and Acceptance
1. The risk shall pass to the purchaser upon dispatch of the delivery items at the latest. This shall also apply, if partial deliveries are made, or if the supplier agreed to render additional services, e.g. shipping costs or delivery and installation.
Upon the purchaser’s request, the consignment may be insured by the supplier against damage through breakage, transport, fire and water at the purchaser’s cost.
Should shipment be delayed due to circumstances the supplier cannot be made liable for, the risk shall pass to the purchaser on the day the goods are ready for dispatch; however, the supplier shall be obligated to take out such insurance cover requested by the purchaser and at the purchaser’s cost.
3. Delivered items are to be accepted by the buyer, even if they show immaterial defects, without prejudice to the rights set forth in paragraph VIII.
4. Partial deliveries shall be admissible.
VI. Reservation of Title
The seller shall retain title to the supplied goods until the purchase price is settled in full, as well as any preceding and future claims the seller has or acquires against the buyer as a result of their business relationship. Prior to full settlement – the same shall apply with respect to current account reservation and balance brought forward on the basis of extended reservation of title – the buyer shall not be entitled to pledge, transfer ownership by way of security or assign the accounts receivables within the framework of a factoring agreement without Tünkers’ consent. Tünkers are to be notified in case of a seizure by a third party in writing without any delay.
Tünkers shall retain title in particular, until the buyer has discharged Tünkers from any liability of the parties to a bill of exchange the buyer may incurred in his interest. The reservation of title shall serve as security for accounts receivables with respect to suppliers’ invoices.
Should the goods be processes into a new item, this processing shall be done for Tünkers. Acquisition of ownership by the buyer shall be excluded in accordance with section 950 German Civil Code [Bürgerliches Gesetzbuch, BGB].
Should the goods be processed with other goods not in Tünkers ownership, Tünkers shall acquire joint-ownership of the new item based on the ration of the value of the goods supplied by them and the other goods at the time of processing. This new item shall be deemed as a good subject to retention of title in the sense of these conditions.
The buyer hereby assigns any claims resulting from the resale of the goods subject to retention of title to Tünkers at the amount corresponding to the value of the goods subject to retention of title.
Should resale be made together with other goods not in the ownership of the seller at an overall price, the buyer hereby assigns any claims resulting from the resale of the goods subject to retention of title to Tünkers at the amount corresponding to the value of the goods subject to retention of title.
Should the goods subject to retention of title be integrated into the real estate of a third party as an integral part thereof, the buyer hereby assigns the partial claim accrued by buyer against third parties, or the party it may concern, at the amount corresponding to the value of the goods subject to retention of title. If the reserved goods are the joint property of Tünkers, the assignment shall cover the amount corresponding to the value of Tünkers’ share in joint ownership. The value of the goods subject to retention of title in the sense of these conditions shall be the invoice value of the seller in addition to a 20% surcharge for assignment as security. The buyer shall have the revocable right to collect the claims resulting from a resale. Upon request, the buyer shall specify the debtors of claims assigned to the seller and inform the debtors of the assignment.
The seller agrees to release any such securities exceeding the value of the claims to be secured by more than 25%.
Title to the reserved goods shall pass to the buyer upon full settlement of all claims of the seller arising from the business relationship. At the same time, the buyer shall acquire the claims arising from the sale of the goods subject to retention of title.
The measurements and weights specified in our drawings are non-binding. Design changes remain reserved.
The copyrights and the rights pertaining to section 7 German patent law section and 1 German utility modal law, to our engineering drawings and devices next to the associated documents are reserved by us. They are entrusted to the recipient exclusively for personal use, for the purposes of our respective offer and may not be reproduced as a whole or parts thereof, or made accessible to third parties without our explicit approval. As to the event of unlawful use, we refer to sections 1, 15 and 36 German copyright law, sections 1, 3, 15 and 31 to 33 German copyright for works of art and sections 17, 18 and 19 German law against unfair competition.
Drawings and associated documents shall have to be returned to us without delay once decision has been made against ordering.
VIII. Liability for Defects of Supplied Goods
The supplier shall be liable for defects of supplied goods, including the lack of specifically ensured properties, excluding any additional claims, as follows:
1. All parts shall be repaired free of charge at the equitable discretion of choice of the supplier, or shall be resupplied, which become verifiably inoperative or considerably impaired in their operation due to circumstances in existence prior to the passing of the risk, in particular due to faulty design, unsound materials or faulty workmanship within 6 months (in case of multi-shift operation within 3 months) from start of operation. The supplier shall be informed in writing without any further delay of discovery of such defects. Replaced parts are the property of the supplier and are to be returned to us upon request.
In the event that shipment, installation or initial operation is delayed without the supplier being at fault, liability shall expire 12 months after passing of the risk at the latest.
The supplier’s liability for products originating from parties shall be limited to assignment of the liability claims the supplier incurred against the supplier of third-party products.
2. The purchaser’s right to put forward warranty claims shall become unenforceable due to lapse of time in all cases after 6 months after timely notification of defects, at the earliest, however, upon expiry of the warranty period.
3. Liability shall not be assumed for any damage resulting from the following:
Inappropriate or improper use, faulty assembly and/or putting into operation by the purchaser or third parties, wear and tear, faulty or negligent treatment – in particular, excessive load -, unsuitable equipment, substitute materials, faulty construction work, unsuitable foundation, chemical, electrochemical or electric influences, unless they can be ascribed to the supplier’s fault.
4. Having communicated with the supplier, the purchaser shall grant the supplier the appropriate time and opportunity to carry out all repairs and compensation deliveries the supplier deems necessary at his equitable discretion, otherwise the supplier shall be discharged from liability for defects. Only in urgent cases of endangered operational safety, of which the supplier must be informed immediately, or if the supplier is in arrears as to remedying the defect, the purchaser shall have the right to correct the defect himself or by means of third parties and to claim appropriate compensation of costs from the supplier.
5. The immediate costs incurred through repairs or compensation delivery – subject to the complaint being found justified – the costs of the replacement part excluding shipment, the dismounting and installation shall be borne by the supplier. All other costs shall be borne by the purchaser.
6. Liability shall be granted with respect to replacement parts and repairs on the same terms as for the delivery item. The liability period for defects of the delivery item shall be extended by the length of time of service interruption caused by subsequent improvement.
7. The supplier shall be entitled to refuse the remedying of defects for the time the purchaser has not fulfilled his obligations.
8. Liability shall be excluded for the consequences of any modifications or maintenance work carried out by the purchaser or third parties inappropriately and without prior consent of the supplier.
9. Any further claims of the purchaser, in particular as to damages claimed on the basis of damage which did not occur on the delivery item, shall be excluded as far as legally permitted.
IX. Liability for Indirect Damage
The supplier shall not be liable for any indirect damage due to a faulty consignment, e.g. production downtimes, loss of profit and additional use of material, unless based on cases of intent or gross negligence.
The delivery of devices requiring repair must be made carriage free. Shipments made carriage forward may not be taken delivery of.
XI. Purchaser’s Right of Cancellation
1. The purchaser may withdraw from the contract, if the entire performance should become impossible for the supplier prior to passing of the risk. The purchaser may also make use of the right of cancellation if, when ordering similar items, the performance of supply with respect to the number of pieces of a part of the delivery becomes impossible and if the purchaser should have a justified interest in refusing partial delivery; should this not be the case, the purchaser may reduce consideration adequately.
2. Should a delay in delivery arise in the sense of clause IV of the delivery terms, and if the purchaser should grant the supplier being in default, an adequate respite with the explicit declaration that the purchaser will refuse to accept performance after expiry of this deadline, and if the period of grace is not complied with due to the supplier’s fault, the purchaser shall have the right to withdraw.
3. Should the impossibility arise during the time of default in acceptance or due to the purchaser’s fault, the purchaser shall be obligated to counter-perform.
4. Furthermore, the purchaser shall have the right of cancellation, if the supplier is at fault for the unsuccessful lapsing of an adequate period of grace, granted to him for the correction or remedying of a defect, the supplier is liable for in the sense of the delivery terms. The adequate period of grace shall commence only after the defect and the liability of the supplier have been accepted or verified.
5. All other claims of the purchaser shall be excluded, in particular with respect to repudiation of contract, cancellation or reduction and damages of any kind, and also with respect to such damage that did not occur on the delivery item proper.
XII. Supplier’s Right of Cancellation
In case of any unforeseen events in the sense of clause IV of the delivery terms, the supplier shall have the right to withdraw from the contract or parts thereof, as far as such events have a major changing effect on the economic relevance, or the subject of performance, or have a considerable effect on the supplier’s business and in the event of the impossibility of performance emerging subsequently.
The purchaser shall not have the right to claim damages on the basis of such cancellation. Should the supplier wish to make use of the right of cancellation, he shall have to inform the purchaser immediately upon realisation of the consequences of the occurrence. This shall also apply, if an extension of the delivery time had initially been agreed with the purchaser.
XIII. Place of Jurisdiction and Place of Performance
As to all disputes arising from the contractual relationship, complaints shall have to be filed with the competent court of the supplier. The supplier shall also be entitled to sue at the place where the head office of the purchaser is based.