General Terms and Conditions
TINTI GmbH & Co. KG
Effective: July 2010
1 General – Scope of application
1.1 Our Conditions of Sale apply exclusively; we shall not accept contrary or deviating conditions of the customer, unless we have expressly agreed to the application thereof in writing. Our Conditions of Sale shall also apply in the event that we make deliveries to the customer without any reservation, even if we have knowledge of contrary or deviating conditions.
1.2 These Conditions of Sale shall be valid for all goods delivered and services provided by us to companies, legal entities under public law and separate assets under public law within the meaning of Sec. 310 (1) German Civil Code. Additionally, in the event that ongoing business relationships with the relevant customer are certain:
1.3 Our Conditions of Sale shall be valid for all future business transactions with the customer.
2 Bid – Bidding documents
2.1 If the order qualifies as a bid from the customer, we can accept it within two weeks.
2.2 We shall retain all proprietary rights and copyrights to illustrations, drawings, calculations and other documents. This shall include all written documents expressly designated „confidential“. The customer must obtain our express agreement in writing prior to disclosing such documents to third parties.
2.3 Our offers are in all cases non-binding and subject to change without notice. Additional agreements and subsequent amendments to contracts shall not become binding unless we have confirmed them in writing.
3 Prices – Terms of Payment
3.1 Unless our order confirmation states otherwise, our prices are deemed “ex factory”, excluding packaging and shipping costs; these shall be invoiced separately.
3.2 The statutory value added tax is not included in our prices; it will be billed separately for customers in Germany, with the statutory rate valid on the day of billing.
3.3 Unless the order confirmation states otherwise, the purchase price is due and payable with a 2 % discount within 10 days from date of invoice or net (without deductions) within 30 days from date of invoice. The statutory rules apply with regard to the consequences of default in payment.
3.4 The customer shall only have the right to offset payments, if its counterclaims have been finally and conclusively established, are undisputed or have been accepted by us. Further, it shall only be permitted to exercise its right of retention if its counterclaims are based on the same contract.
3.5 The customer shall attach a copy of its trading license with its first order.
3.6.1 Interim product improvements shall be deemed authorised and the purchaser shall benefit from these at no additional cost.
4. Terms of Delivery
4.1 Deliveries shall take place within 10 to 15 working days after receipt of the order, unless agreements have been made to the contrary. Delivery confirmations are however not fixed dates. We reserve the express right to make partial deliveries. In case of partial deliveries the actual quantities shall be invoiced.
4.2 Compliance with our delivery obligations further requires the customer to promptly and correctly fulfil its obligations, including but not limited to the acceptance of the purchased goods or services. We expressly reserve the plea of non-performance.
4.3 Our products shall only be delivered in packaging units and must only be traded in the original packaging. In the event of non-compliance, we must expressly reserve the right to institute legal proceedings.
4.4 In general shipments will be made by haulers or parcel services, at the risk of the purchaser. Deliveries shall only be made by express delivery on request and at the cost of the purchaser.
4.5 Excess or short deliveries of up to 10% of the order volume may not be rejected. The actual quantity delivered will be invoiced. If delivery is postponed at the request of the purchaser, we shall have the right to charge an additional 1% of the invoice total for each month of storage.
4.6 Wholesalers within Germany will not be charged shipping and handling fees if the minimum order value totals € 1,000.00 net. Our minimum order value for retailers within Germany is € 75.00. For orders totalling less than € 250.00 net we will charge shipping and handling fees in accordance with our current price list, for orders totalling € 250.00 and above we will not charge shipping and handling fees.
Traders outside Germany will generally receive delivery within 10 to 15 days after receipt of payment (advance payment). For delivery, we will charge shipping and freight charges in accordance with our current price list.
The minimum order value for wholesalers outside Germany is from € 1,500.00 net, for retailers outside Germany it is from € 250.00 net, depending on the destination.
4.7 If the customer defaults in taking delivery or if it culpably violates other duties of cooperation, we shall be entitled to claim compensation for the incurred damage including any additional expenses. We reserve the right to exercise further claims or rights.
4.8 We shall be liable under the statutory provisions to the extent that the relevant contract covers a transaction where time is of the essence for the purpose of Sec. 286 (2) (4) German Civil Code or Sec. 376 German Commercial Code. We shall also be liable under the statutory provisions if due to a default in delivery for which we are responsible the customer is entitled to claim that it no longer has an interest in performing under the contract.
4.9 We shall further be liable under the statutory provisions, if a default in delivery is due to a wilful or grossly negligent violation of contract for which we are responsible; any fault attributable to our representatives or employees shall be our fault. If a default in delivery is due to a violation of contract due to gross negligence for which we are responsible, liability for damages shall be limited to foreseeable typical damage.
4.10 We shall also be liable in accordance with the statutory provisions if a default in delivery for which we are responsible is a result of culpable violation of a fundamental contractual obligation; in such case however, liability for damages shall be limited to foreseeable, typical damage.
4.11 Other customer rights and claims under the law reserved.
5 Transfer of risk – Packaging charges
5.1 Unless the order confirmation states otherwise, the delivery term “ex factory” shall be agreed.
5.2 On request of the customer, we will effect transport insurance for delivery; the costs of which shall be borne by the customer.
6 Liability for defects
6.1 A prerequisite for customer warranty claims is that the customer has fulfilled its inspection and notification obligations under Sec. 377 German Commercial Code and that the customer has reported any defect in writing no later that two days from receipt of the goods.
6.2 If there is a defect in the goods, it is in the customer’s discretion to either demand correction of the defect or to demand delivery of faultless goods. In the event of correction of the defect or replacement delivery, we shall bear all expenses pertaining to correction of delivery, including but not limited to transport costs, toll, labour and material costs, to the extent that such costs are not increased by the fact that the purchased goods or services are to be delivered to a place other than the place of performance.
6.3 If correction of the defects or subsequent delivery fails, it is in the customer’ discretion to either withdraw from contract or to demand a reduction in price.
6.4 We shall be liable under the statutory provisions, if the customer asserts damage claims on the basis of intent or gross negligence, including intent or gross negligence of our representatives or employees.
To the extent we are not accused of wilful and knowing violation of contract, liability for damages shall be limited to foreseeable, typical damage.
6.5 Unless above terms state otherwise, liability shall be excluded.
6.6 The statutory period of limitation for warranty claims shall be 12 months from the date the risk passed, meaning the date the goods are delivered to the hauler or parcel service.
6.7 The statutory period of limitation in the event of delivery recourse pursuant to Sec. 478, 479 German Civil Code remains unaffected; it shall be five years from the date the defective good was returned.
6.8 Any further liability for damages shall be excluded, regardless of the legal nature of the asserted claim. Including but not limited to, this applies for compensation claims due to faults in conclusion of the contract, due to other breaches of duties or tortuous claims for compensation for property damage pursuant to Sec. 823 German Civil Code.
6.9 This limitation under 6.8 shall also apply if the customer demands replacement of futile expenses instead of performance instead of claiming compensation for the damage.
6.10 To the extent our liability for damages has been excluded or limited, this shall also apply to the personal liability for damages of our employees, workers, staff and representatives.
7 Retention of Title
7.1 We expressly reserve title to the goods until all payments under the delivery contract have been received in full. If the customer violates the contract, including but not limited to default in payment, we shall be entitled to take back the goods. Taking back the goods shall represent a cancellation of the contract.
We shall be entitled to dispose of the goods on their return; the proceeds from such disposition shall be set off against the customer’s debts owed to us – less any appropriate costs of disposition.
7.2 The customer shall treat the goods with due care; including but not limited to shall it insure them sufficiently against fire, water and theft with their replacement value, at its own cost.
7.3 The customer shall inform us immediately in writing about any levy of execution or other measures taken by third parties so as to allow us to bring a third party action against execution pursuant to Sec. 771 Code of Civil Procedure.
If the third party is not able to compensate us for the court and out of court expenses of such an action pursuant to Sec. 771 Code of Civil Procedure, the customer shall be liable for the expenses incurred by us.
7.4 The customer shall be entitled to resell the goods in the ordinary course of business; however, all claims from reselling them to its customers or third parties shall be deemed assigned to us, in the amount of our invoice including VAT, irrespective of the fact whether the goods are resold before or after processing. The right to collect such claims shall remain with the customer, even after this assignment. This does not affect our right to collect the claims ourselves. However, we undertake not to make use of such right as long as the customer meets its payment obligations from the collected proceeds, no default in payment occurs and, including but not limited to, no bankruptcy or insolvency proceedings have been filed and payments have not been suspended. However, if this is the case, we can demand that the customer informs us of the assigned claims and the debtors and provides us with all details necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment in writing.
8 Data protection
By placing its order, the customer agrees to the storage of its data. Data from the business relationship will be stored, to the extent allowed by the German Data Protection Act.
9 Place of jurisdiction – Place of performance
9.1 If the customer is a merchant, our registered place of business shall be deemed the agreed place of jurisdiction; however, we shall also be entitled to bring legal proceedings against the customer at its own place of residence.
9.2 The laws of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be expressly excluded.
9.3 Unless the order confirmation states otherwise, our registered place of business shall be the place of performance.
10 Severability Clause
If one of the provision of these General Conditions of Sale is or becomes ineffective, the validity of the rest of the provisions shall not be affected. A provision that is partially or fully invalid shall be replaced by a provision that comes as close as possible to the purpose and meaning of the invalid provision and is still legally effective.
