GENERAL BUSINESS TERMS AND CONDITIONS
Section 1 Application of the Terms and Conditions
1. All agreements and offers are governed exclusively by these general business terms and conditions. They are deemed to be accepted when an order is placed or a delivery is accepted. They also apply to all future business relationships, even if they are not expressly agreed upon again. Deviating terms and conditions of the orderer are not recognised by the company Tontarra GmbH.
2. Assurances, subsidiary agreements or other contract amendments requested by the orderer are only effective if they are confirmed by Tontarra GmbH in writing.
Section 2 Offer, Conclusion of the Contract, Terms of the Contract
1. All offers of Tontarra GmbH are subject to change without notice and non-binding. Contracts are only concluded upon written confirmation by Tontarra GmbH. In case of prompt delivery without issuing an order confirmation, the invoice is deemed to simultaneously constitute the order confirmation.
2. Drawings, illustrations, dimensions, weights and other performance characteristics are only binding if they have been expressly agreed upon in writing.
3. Partial deliveries are allowable.
Section 3 Prices and Payment Terms
1. The prices in the offers and price lists of Tontarra GmbH are quoted in Euros, net of packaging, VAT and freight, ex works Wurmlingen. The prices in effect on the day of delivery will be charged.
2. Invoices are payable within 30 days from the invoice date, with no deductions, costs or fees. Drafts and cheques are only considered payments when they are redeemed. Repair invoices are payable immediately with no deductions.
3. Tontarra GmbH is authorised to apply payments of the orderer to the oldest debts first. If costs and interest have already been incurred, Tontarra GmbH has the right to apply payments first to costs, then to interest and finally to the invoice amount.
4. Offsetting against counter‐claims of the orderer that are disputed by Tontarra GmbH or notlegally established is excluded. The orderer can only assert a right of retention for counterclaims arising from the same contract.
5. In case of late payment by the orderer, Tontarra GmbH is authorised to charge interest fromthe date of default at a minimum rate of 6% p.a. above the prime rate pursuant to Section 247 of the German Civil Code (BGB). In case of proof of higher interest costs by Tontarra GmbH or proof of lower interest costs by the orderer, interest is to be charged at acorrespondingly higher or lower rate.
6. If the orderer is late in making a payment or if there is concrete evidence of a pending inability to pay, Tontarra GmbH may cease working on completing current orders and demand adequate security for the performance of the contract. If the orderer fails to provide adequate security in a timely manner, Tontarra GmbH has the right to withdraw from the contract and bill the orderer for the costs incurred to date as well as lost profits
Section 4 Delivery and Service Period
1. The terms and deadlines specified by Tontarra GmbH are non‐binding unless anything to the contrary was expressly agreed upon in writing. The delivery term begins as soon as all details for the completion of the order have been clarified and both sides agree on the terms andconditions for the transaction.
2. The delivery deadline is deemed to have been met as long as the object of the contract has left the premises of Tontarra GmbH or readiness for shipment has been communicated in writing by said deadline. Adequate extensions to the delivery deadline must be granted for subsequent changes or amendments requested by the orderer. The same applies if unexpected events beyond the control of Tontarra GmbH occur, such as force majeure, labour disputes, strikes, lock‐outs or delays in the delivery of essential raw materials, materials or parts. This also applies if the events mentioned above affect a supplier ofTontarra GmbH. The described events authorise Tontarra GmbH to delay delivery and/or performance for the duration of the impediment plus a commensurate start‐up time, or to withdraw from the contract in whole or in part to the extent that delivery and/or performance is incomplete.
3. In case of a delivery delay for reasons within the control of Tontarra GmbH, the orderer can impose a commensurate period of grace by issuing a written notice to Tontarra GmbH,specifying that the object of the contract will not be accepted after the end of the grace period. In case of non‐performance by the end of the grace period, the orderer has the rightto withdraw from the contract by issuing a written notice and/or to demand compensation in place of performance in case of intent or gross negligence. Additional claims for damages by the orderer are excluded. The same applies in case of default due to the impossibility of performance/delivery for reasons within the control of Tontarra GmbH.
Section 5 Delivery, Shipment, Passing of Risk
1. Unless anything to the contrary is agreed upon, Tontarra GmbH delivers freight collect with no insurance ex works.
2. Risk is passed to the orderer as soon as the shipment has been transferred to the person commissioned for transportation or has left the premises of Tontarra GmbH for the purpose of shipment.
3. If shipment is delayed for reasons within the control of the orderer, risk is passed to the orderer on the day of readiness for shipment.
Section 6 Default of Acceptance, Call Order
1. If the orderer does not accept the object of the contract or fails to do so in a timely manner,Tontarra GmbH has the right to grant a commensurate period of grace with notification that, at the end of said grace period, the object of the contract will be otherwise disposed of and delivery to the orderer will take place with an adequate extension of the delivery date, or to invoice the object of the contract immediately and store it at the cost and risk of the orderer. In the latter case, storage costs that are incurred beginning one month after notification of readiness for shipment are billed to the orderer. The right of Tontarra GmbH to withdraw from the contract subject to the applicable legal regulations or to demand compensation in place of performance remains unaffected. If Tontarra GmbH demands compensation in place of performance, 25% of the invoice amount can be demanded as compensation without proof unless the orderer provides proof that the actual amount of incurred damage was lower. The right to assert higher damages with corresponding proof is reserved.
2. In the absence of agreements to the contrary, orders confirmed by Tontarra GmbH on demand must be accepted no later than within one year from the order date. If such orders are not accepted within the specified term, the provisions of the preceding section in these general business terms and conditions apply correspondingly.
Section 7 Retention of Title
1. Tontarra GmbH retains title to the delivered goods until the purchase price is paid in full and any other claims arising from the existing business relationship with the orderer are settled.
2. The goods subject to the retention of title may not be pledged, assigned by way of security or otherwise encumbered by the rights of third parties. The orderer may only resell the goods or combine them with other chattels within the scope of its ordinary business activities. The orderer has to ensure that the retention of title by Tontarra GmbH is maintained wherepossible, and assigns its claim for the purchase price of the goods – after processing if applicable – against its customers to Tontarra GmbH in full now and in advance. Tontarra GmbH hereby accepts said assignment. The orderer is required to identify the customers upon request.
3. Upon request by the orderer, Tontarra GmbH shall release the security interest insofar as the value of the security exceeds the secured claim by more than 20% and the security interest can be divided.
4. In case of late payment, the impending inability to pay and in case of unsatisfactory information regarding the creditworthiness of the orderer, or in case of compulsory execution or acts of protest against the orderer, Tontarra GmbH has the right to take possession of the goods subject to retention of title. The orderer is obligated to surrender said goods. All costs of taking back and utilising the goods subject to retention of title are borne by the orderer. The utilisation costs without proof are set at 10% of the utilisation proceeds including VAT. A higher or lower amount shall apply insofar as Tontarra GmbH or the orderer can provide proof of higher or lower costs. The proceeds are remitted to the orderer by Tontarra GmbH after deducting the costs and other claims related to the contract. Asserting the retention of title or pledging the delivery items by Tontarra GmbH does not constitute withdrawal from the contract.
5. Actual or legal access by third parties to the goods subject to retention of title as well asdamage to or loss of the same must be communicated to Tontarra GmbH promptly inwriting. All costs incurred by Tontarra GmbH in these cases are borne by the orderer.
6. The orderer is require to obtain adequate insurance for all common risks on the goods subject to retention of title and to treat them with due care. Claims of the orderer against an insurer based on a case of loss are assigned to Tontarra GmbH with the conclusion of the
contract at the value of the goods subject to retention of title.
7. Any modification and processing, mixing or combining of the goods subject to retention oftitle takes place by order of Tontarra GmbH, without the same incurring any liabilities as a result.
Section 8 Warranty
1. Apparent defects must be reported to Tontarra GmbH promptly in writing upon receipt of the object of the contract, concealed defects promptly when they are noted. The object of the contract is deemed to have been accepted if no complaint is received within eight working days after the arrival of the goods. Defects that cannot be discovered within this term, even after a detailed inspection, must be reported to Tontarra GmbH promptly in writing when they are noted.
2. In case of justified complaints, payments may only be held by the orderer to a commensurateextent relative to the defects.
3. Tontarra GmbH is liable for defects reported in a timely manner, as follows:
a) Rectification or new delivery, free of charge and at the discretion of Tontarra GmbH, applies to parts that prove to be unusable or significantly impaired in regards to usability due to circumstances prior to the passing of risk, in particular design flaws, defective materials or improper execution. Muliple attempts at rectification or new deliveries are allowable. Parts that are replaced become the property of Tontarra GmbH.
b) The orderer is obligated to grant Tontarra GmbH the required time and opportunity to complete the rectification of defects and replacement deliveries as deemed necessary by Tontarra GmbH; otherwise, Tontarra GmbH is relieved of its liability for defects.
c) No liability for defects is assumed in case of minor deviations from the agreed characteristics or defects caused by unintended or improper use, incorrect installation and/or commissioning by the orderer or third parties, natural wear, improper or careless treatment or maintenance, unsuitable supplies or substitute materials, defective installation or chemical, electrochemical or electrical influences. The warranty obligation is also eliminated in case of maintenance, damage or changes by the orderer or third parties without the consent of Tontarra GmbH, insofar as there is a causative relationship to the asserted defect.
4. If rectification or replacement delivery is impossible, has ultimately failed or is unreasonably delayed, the orderer may demand the rescission of the contract or a reduction of the purchase price. All other contractual and non‐contractual claims of the orderer against Tontarra GmbH and its assistants are excluded, especially compensation claims for direct or indirect damages, lost profits and/or the performance of the warranty, except in case of intent or gross negligence and/or mandatory statutory liability on the part of Tontarra GmbH.
5. The statute of limitations for warranty claims also applies to all other claims of the orderer, including contractual and non‐contractual claims for damages.
Section 9 Final Provisions
1. These general business terms and conditions as well as the entire legal relationship between Tontarra GmbH and the orderer are subject to the laws of the Federal Republic of Germany, with the exclusion of the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods.
2. Insofar as permitted by law, Tuttlingen is the sole jurisdiction for all disputes arising from the contractual relationship, directly or indirectly.
3. Should a provision of these general business terms and conditions and any subsequent agreements be or become invalid, the validity of the remaining provisions shall remain unaffected. The contractual partners are obligated to replace the ineffective provision with a valid provision that comes as close as possible to the original economic intent.