General Terms and Conditions
General Terms of Sale
Tinti GmbH & Co. KG
1. Area of application
1.1 Contracts concluded with our customers are exclusively carried out according to these General Terms and Conditions of Sale (Conditions of Sale). We do not recognise the customer's General Business Terms and Conditions unless we expressly agree to their validity. The unconditional delivery to customers does not constitute recognition of their General Business Terms and Conditions.
1.2 These Conditions of Sale apply to all services provided to companies, legal persons under public law as well as separate estates under public law pursuant to Section 310 sub-section 1 BGB [Bürgerliches Gesetzbuch / Civil Code]
1.3 In the event of existing, ongoing business relations with customers who have recognised our Conditions of Sale, the latter shall also apply for future business transactions.
2. Concluding the contract
2.1 Offers which we depict in catalogues or in the Internet form a non-binding invitation to the customer to submit a declaration of willingness to enter into a contract. As far as we draw up individual customer-specific offers, the binding effect corresponds to the content of the offer.
2.2 If an order which must be qualified as an "application" is submitted by the customer, the contract is concluded either through the order confirmation or through delivery.
2.3 Any concluded contract obligates the customer to accept and pay for the deliveries as agreed.
2.4 We reserve all rights of ownership and copyright to all illustrations, drawings, calculations and other documentation which we have handed to the customer or made available in any other form, including electronic. This also applies for such written documents which are specifically marked "confidential". Passing on these documents to third parties requires our express written approval.
3. Prices, payment terms
3.1 As far as no special pricing agreement exists with the customer, our prices are quoted "ex works", excluding packaging and shipping costs. These are invoiced separately.
3.2 Our prices do not include the statutory value-added-tax. This is shown separately in the invoice for our German customers at the statutory amount.
3.3 Payments are due within 10 days from the date of invoice less 2% discount or 30 days net (without any deduction). Pre-payment is required for deliveries outside Germany with 3% discount. The payment is considered made once we can dispose of the amount shown in the invoice. Statutory regulations for payment default shall apply.
3.4 Only undisputed, legally determined claims or claims recognised by us can be set off.
3.5 The customer is only authorised to exercise a right of retention if such right is based on the same contractual relationship.
3.6 The customer is obligated to attach a copy of the trade licence for a first order.
4. Delivery terms
4.1 Deliveries are made within a reasonable deadline unless calendar-determined or calculable deadlines or dates are agreed to.
4.2 Adherence to our delivery obligation presupposes the timely and proper fulfilment of the customer's obligations, in particular the acceptance of the purchased item. The right to object to the unfulfilled contract remains expressly reserved.
4.3 Our products are only offered in pack sizes and may only be traded in the corresponding original packaging. We expressly reserve the right of initiating legal action in the event of any contravention.
4.4 Deliveries are usually carried out by forwarding companies or parcel courier services at the customer's risk. They are only sent as express goods at the customer's request and expense.
4.5 We are entitled to supply part deliveries to a reasonable extent. The relevant delivered quantity will be invoiced.
4.6 If the despatch is postponed at the customer's request, we will charge the customer - commencing one month after the notification of the readiness for despatch - for the additional costs arising as a result of storage - at least, however, 1 percent of the net invoice amount for each month of storage.
4.7 Deliveries to traders outside Germany are made within a reasonable deadline after receipt of payment (payment in advance) unless other delivery deadlines or dates have been independently agreed to. The minimum order quantity for wholesalers outside Germany is EUR 2,000.00 net; for retailers outside Germany an amount of EUR 250.00 net. Delivery costs are charged separately.
5. Customer's acceptance obligations
The customer is obligated to accept the goods within in the agreed delivery deadline or at the agreed delivery date. Should the customer be in default of acceptance or violate other obligations to cooperate, we are then entitled to demand compensation for additional expenditure incurred by us. Further legal claims remain reserved. In this case, the danger of accidental loss or an accidental deterioration passes to the customer.
6. Delivery delays
6.1 If the agreed delivery deadline or date cannot be adhered to due to force majeure, industrial conflict or other events outside our sphere of influence, the delivery deadline or date is appropriately extended. We will notify the customer without delay of the occurrence of such an event and advise the end of the event as soon as it becomes evident. If the hindrance lasts longer than 30 days, the customer is entitled to withdraw from the contract with regard to the unfulfilled portion whilst maintaining other claims arising from the contract.
6.2 As far as we are in arrears and the customer incurs consequential damage, the customer is entitled to assert claims for damages in terms of Clause 9. Statutory provisions shall apply to the customer's right of withdrawal in the case of default. The customer shall, as far as there is no statutory exception, grant us a reasonable period of grace for the performance. On request, the customer shall notify us within a reasonable deadline whether he wishes to exercise his right of withdrawal.
6.3 Further legal entitlements and rights of the customer remain reserved.
7. Transfer of risk, transport insurance
7.1 The risk of loss of and damage to the goods passes over to the customer when the goods are handed over to the carrier.
7.2 As far as the customer requests this, we will take out transport insurance cover; any corresponding costs incurred are for the customer's account.
8. Liability for defects, statutory period of limitation for claims for defects
8.1 To assert claims for damages, the customer must comply with the examination and the obligation to notify defects owed in terms of Section 377 HBG [Handelsgesetzbuch = Commercial Code] and notify us in writing of determined defects no later than 5 days after delivery.
8.2 As far as there is a defect to the goods, the customer is entitled - at his choice - to request a supplementary performance to remove the defect or the delivery of a new, perfect item. In the event of a removal of the defect or a new delivery, we will carry the cost of the required expenditure according to legal provisions; in particular costs related to transport, road charges, labour and material as far as we are obligated to do so in terms of legal provisions and these costs are not increased due to the fact that - unrecognisable for us - the goods were sent to a place other than the original delivery site.
8.3 If the supplementary performance fails, the customer may choose if he wishes to withdraw from the agreement or declare a reduction subject to prevailing legal conditions.
8.4 Claims for damage due to defects asserted by the customer are in accordance with Clause 9.
8.5 The statutory period of limitations for claims for defects is twelve months after delivery unless there is liability of intent. In this case, as well as if we sell goods for which in terms of Section 438 sub-section 1 No. 2 BGV a longer period is envisaged, or for deceitful concealment of a defect, the legal deadlines shall apply. The statutory period of limitations shall apply to the customer's right of recourse arising from Sections 478, 479 BGB for supplier recourse.
We are liable for damages, irrespective of the legal ground, only in the event of intent, gross negligence, culpable harm to life, body and health as well as the relevant protective laws, for defects which we deceitfully conceal or whose absence we have guaranteed and as far as a liability exists according to the Product Liability Act for persons and property damage to privately used items. In the event of a violation against important contractual obligations whereby the customer loses that which he could expect in terms of the contract, we are also liable in the event of slight fault; however, the scope of liability is restricted to damages which are typical and foreseeable for contracts. Any further claims on the part of the customer are excluded; in particular claims for the payment of contractual penalties not agreed to or compounded claims for damages.
10. Reservation of title
10.1 We expressly reserve the right to the goods until the receipt of all payments arising from the delivery agreement. In the event of a contractual violation by the customer, in particular payment default, we are entitled to demand the surrender of the goods if we withdraw from the contract due to payment default.
10.2 After we have taken back the goods, we are entitled to utilise these at any time; the proceeds of such utilisation will be set off against the customer's liability, with the deduction of reasonable utilisation costs.
10.3 The customer is obliged to treat the goods with care; in particular he is obliged, at his expense, to take out sufficient insurance cover against damage resulting from fire, water and theft and insure the goods at their reinstatement value.
10.4 In the event of pledging or other third-party interventions, the customer shall immediately notify us in writing to enable us to commence an action in terms of Art. 771 ZPO [Zivilprozessordnung = Code of Civil Procedure]. As far as the third party is not in a position to refund us the court and out-of-court expenses of an action pursuant to Art. 771 ZPO, the customer shall be liable for any loss incurred to us.
10.5 The customer is entitled to sell the goods in the ordinary course of business (goods supplied under the reservation of title). However, he already now assigns all claims in the amount of the invoice value or the corresponding value of the goods supplied under the reservation of title to us which arise to him from the resale against his buyer or third parties. The customer remains entitled to collect this claim even after the assignment. Our authorisation to collect the claim remains unaffected herefrom. We do, however, undertake not to collect the demand as long as the customer meets his payment obligations from the proceeds received, is not in arrears, and in particular as long as no insolvency proceedings are initiated against the customer or a suspension of payment exists.
10.6 Should this, however, be the case, we can demand that the customer informs us of the assigned claims and their debtors, provides us with all details required for the collection and hands over the relevant documentation and then informs the debtors (third party) of the assignment.
11. Data protection
Data which the customer makes available to us based on the business relationship are stored and used for the purpose of handling the business relationship in compliance with the provisions of the Data Protection Act.
10. Place of performance, place of jurisdiction, applicable law
10.1 In the absence of any other agreement, the place of performance is our place of business.
10.2 The place of jurisdiction is the competent court for our place of business. We are, however, entitled to take legal action against the customer at his general place of jurisdiction.
10.3 The law of the Republic of Germany shall apply. The agreement of the United Nations governing the international sale of goods of 11 April 1980 (UN Convention on Contracts for the International Sale of Goods (CISG)) is excluded.
Status: May 2013