1.1 All deliveries, services, and offers by TeraTron GmbH (hereinafter referred to as the “Seller”) are made exclusively on the basis of these General Terms and Conditions of Delivery. These terms are an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as the “Customer”) regarding the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Purchaser, even if not expressly agreed again.
1.2 Terms and conditions of the Customer or of third parties shall not apply, even if the Seller does not expressly object to their applicability in individual cases. Even if the Seller refers to a document that contains or refers to terms and conditions of the Customer or a third party, this shall not be deemed as consent to the applicability of such terms and conditions.
2. Offers and Conclusion of Contract
2.1 All offers made by the Seller are subject to change and non-binding, unless they are expressly designated as binding or contain a specific acceptance period. Orders or purchase orders may be accepted by the Seller within 21 days after receipt.
2.2 The written purchase agreement, including these General Terms and Conditions of Delivery, shall be solely decisive for the legal relationship between the Seller and the Customer. This agreement fully reflects all understandings between the contracting parties regarding the subject matter of the contract. Any oral commitments made by the Seller prior to the conclusion of this contract shall be legally non-binding, and any oral agreements between the parties shall be superseded by the written contract, unless it is expressly stated in each case that they shall remain binding.
2.3 Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, require written form to be effective. With the exception of managing directors or authorized signatories, the Seller’s employees are not authorized to make verbal agreements that deviate from the written agreement. Telecommunication transmission, in particular, suffices for compliance with the written form requirement. by fax or by e-mail, provided that a copy of the signed declaration is transmitted.
2.4 Information provided by the Seller regarding the subject of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations thereof (e.g., drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality characteristics, but rather descriptions or designations of the delivery or service. Customary commercial deviations and deviations resulting from legal requirements or technical improvements, as well as the substitution of components with equivalent parts, shall be permitted provided that they do not impair the suitability for the contractually intended purpose.
2.5 The Seller reserves ownership and/or copyright to all offers and cost estimates submitted by it, as well as to all drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids made available to the Customer. Without the Sellerโs express consent, the Customer shall not make these items or their contents accessible to third parties, disclose them, use them itself or through third parties, or reproduce them. Upon the Sellerโs request, the Customer shall return all such items in full and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. This shall not apply to the storage of electronically provided data for the purposes of customary data backup.
3. Prices and Payment
3.1 The prices apply to the scope of deliveries and services specified in the order confirmations. Additional or special services shall be charged separately. All prices are stated in EUR ex works, plus packaging, statutory value-added tax (VAT), and, in the case of export deliveries, customs duties as well as fees and other public charges, unless otherwise agreed in writing.
3.2 Insofar as the agreed prices are based on the Seller’s list prices and delivery is to take place more than four months after the conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (each minus an agreed percentage or fixed discount).
3.3 Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller is decisive for the date of payment. Payment by check is excluded, unless specifically agreed upon in individual cases. If the Customer fails to pay on the due date, the outstanding amounts shall bear interest at 9 percentage points above the respective base interest rate from the due date; the right to claim higher interest and further damages in the event of default remains unaffected.
3.4 Offsetting with counterclaims of the Customer or the withholding of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established, or arise from the same order under which the respective delivery was made.
3.5 The Seller is entitled to execute or render outstanding deliveries or services only against advance payment or security if, after the conclusion of the contract, circumstances become known to the Seller that are likely to significantly reduce the Customer’s creditworthiness and thereby jeopardize the payment of the Seller’s open claims by the Customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
4. Delivery and Delivery Time
4.1 Deliveries shall be made ex works.
4.2 Any deadlines and dates for deliveries and services indicated by the Seller shall always be considered approximate only, unless a fixed deadline or date has been expressly agreed or confirmed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the freight forwarder, carrier, or other third party entrusted with the transport.
4.3 Without prejudice to its rights arising from the Customerโs default, the Seller may request an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to fulfill its contractual obligations toward the Seller. Deliveries of excess or short quantities of up to 5% are permissible without the Buyerโs consent.
4.4 The Seller shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g., operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure, incorrect or untimely delivery by suppliers) for which the Seller is not responsible. If such events make delivery or service significantly more difficult or impossible for the Seller and the impediment is not merely of temporary duration, the Seller is entitled to withdraw from the contract. In the case of temporary impediments, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the duration of the impediment plus a reasonable start-up period. Hier ist die juristisch saubere, international รผbliche รbersetzung โ copy & paste ready:
If, as a result of the delay, acceptance of the delivery or service cannot reasonably be expected of the Purchaser, the Purchaser may withdraw from the contract by giving immediate written notice to the Seller.
4.5 The Seller shall be entitled to make partial deliveries only if
> the partial delivery is usable for the Customer within the scope of the contractually intended purpose,
> the delivery of the remaining ordered goods is ensured,
> the Customer does not incur any significant additional effort or costs as a result (unless the Seller agrees to bear such costs).
4.6 If the Seller is in default with a delivery or service, or if a delivery or service becomes impossible for whatever reason, the Sellerโs liability for damages shall be limited in accordance with Section 7 of these General Terms and Conditions of Delivery.
5. Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance
5.1 The place of performance for all obligations arising from the contractual relationship shall be the Sellerโs place of business, unless otherwise specified. If the Seller is also responsible for installation, the place of performance shall be the location where the installation is to be carried out.
5.2 The method of shipment and the packaging shall be at the Sellerโs reasonable discretion. Any specific customer requirements must be agreed in writing with the Seller.
5.3 The risk passes to the Customer at the latest upon handover of the delivery item (where the start of the loading process is decisive) to the forwarder, carrier, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if the Seller has undertaken other services (e.g., shipping or installation). If shipment or handover is delayed due to circumstances attributable to the Purchaser, the risk shall pass to the Purchaser from the day on which the goods are ready for shipment and the Seller has notified the Purchaser thereof.
5.4 Storage costs after the transfer of risk shall be borne by the Customer. If stored by the Seller, storage costs amount to 0.25% of the invoice value of the delivery items to be stored per commenced week. The right to claim and prove higher or lower storage costs shall remain reserved.
5.5 The shipment shall be insured by the Seller against theft, breakage, transport, fire, and water damage or other insurable risks only upon the Customerโs express request and at the Customerโs expense.
5.6 To the extent that acceptance is required, the purchased goods shall be deemed accepted if
> the delivery and, if the Seller is also responsible for installation, the installation has been completed,
> the Seller has notified the Customer thereof with reference to the deemed acceptance provision under this Section and has requested acceptance,
> twelve working days have passed since delivery or installation, or the Customer has commenced use of the purchased goods (e.g. has put the delivered system into operation), in which case six working days have passed since delivery or installation, and
> the Customer has failed to declare acceptance within this period for any reason other than a defect notified to the Seller that renders the use of the purchased goods impossible or significantly impairs it.
6. Warranty, Defects in Material and Title
6.1 The warranty period shall be one year from delivery or, where acceptance is required, from the date of acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by the Seller or its agents, which shall in each case be subject to the statutory limitation periods.
6.2 The delivered items must be carefully inspected immediately after delivery to the Customer or to the third party designated by the Customer. They shall be deemed approved by the buyer with regard to obvious defects or other defects that would have been recognizable upon immediate, careful inspection, if a written notice of defect is not received by the Seller within seven working days after delivery. With regard to other defects, the delivery items shall be deemed approved by the buyer if the notice of defect is not received by the Seller within seven working days after the time the defect became apparent; if the defect was already obvious at an earlier time during normal use, this earlier time is decisive for the start of the notification period. Upon the Seller’s request, a complained-about delivery item must be returned to the Seller freight-free. In the event of a justified notice of defects, the Seller shall reimburse the costs of the most economical method of shipment; this shall not apply if the costs increase because the goods are located at a place other than the place of intended use.
6.3 In the event of material defects in the delivered items, the Seller shall, at its discretion and within a reasonable period, be entitled and obliged to either remedy the defect or provide a replacement delivery. In the event that such remedy fails, i.e. is impossible, unreasonable, refused, or unduly delayed, the Customer may withdraw from the contract or reduce the purchase price appropriately.
6.4 If a defect is due to the fault of the Seller, the Customer may claim damages subject to the conditions set out in Section 7.
6.5 In the case of defects in components from other manufacturers that the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers on behalf of the Customer or assign them to the Customer. Warranty claims against the Seller for such defects exist under the other conditions and in accordance with these General Terms and Conditions of Delivery only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is hopeless. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the Purchaser against the Seller shall be suspended.
6.6 The warranty shall be void if the Customer modifies the delivery item without the Sellerโs consent or has it modified by third parties, and if such modification renders the remedy of defects impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs incurred for the remedy of defects resulting from such modification.
6.7 Any delivery of used goods agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
7. Liability for Damages Due to Fault
7.1 The Sellerโs liability for damages, irrespective of the legal grounds, in particular arising from impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, or tort, shall, insofar as fault is required in each case, be limited in accordance with the provisions of this Section 7.
7.2 The Seller shall not be liable in cases of ordinary negligence on the part of its executive bodies, legal representatives, employees, or other agents, unless a breach of essential contractual obligations is involved. Essential contractual obligations are those obligations for the timely delivery and installation of the delivery item, its freedom from defects in title, as well as from material defects that impair its functionality or fitness for use more than insignificantly, and such advisory, protective, and custodial duties that are intended to enable the Customer to use the delivery item in accordance with the contract or to protect the life or physical integrity of the Customerโs personnel or the Customerโs property from significant damage.
7.3 Insofar as the Seller is liable for damages in principle pursuant to Section 7.2, such liability shall be limited to damages which the Seller foresaw at the time of the conclusion of the contract as a possible consequence of a breach of contract or which he ought to have foreseen by exercising due care. Indirect damages and consequential damages resulting from defects of the goods shall only be recoverable to the extent that such damages are typically to be expected from the intended use of the goods.
7.4 In the event of liability for ordinary negligence, the Sellerโs obligation to pay damages for material damage and any resulting financial losses shall be limited in amount per claim to the net remuneration agreed under the respective underlying purchase contract owed by the Customer to the Seller.
7.5 The above exclusions and limitations of liability shall apply to the same extent in favor of the Sellerโs executive bodies, legal representatives, employees, and other agents.
7.6 To the extent that the Seller provides technical information or advisory services that do not form part of the contractually agreed scope of performance, such information or advice shall be provided free of charge and to the exclusion of any liability.
7.7 The limitations set out in this Section 7 shall not apply to the Sellerโs liability for intentional misconduct, for guaranteed characteristics, for injury to life, body, or health, or under the Product Liability Act.
8. Retention of Title
8.1 The retention of title agreed below serves to secure all present and future claims of the Seller against the Customer arising from the ongoing business relationship between the contracting parties.
8.2 The goods delivered by the Seller to the Customer shall remain the property of the Seller until full payment of all secured claims has been made. The goods, as well as any items replacing them in accordance with the following provisions and covered by the retention of title, shall hereinafter be referred to as โretained goods.โ
8.3 The Customer shall store the retained goods for the Seller free of charge.
8.4 The Customer shall be entitled to process and sell the retained goods in the ordinary course of business until the occurrence of the enforcement event (Section 8.9). Pledges and transfers of ownership by way of security are not permitted.
8.5 If the reserved goods are processed by the Customer, it is agreed that the processing is carried out in the name and for the account of the Seller as manufacturer, and the Seller directly acquires ownership or โ if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods โ co-ownership (fractional ownership) of the newly created item in proportion to the value of the reserved goods to the value of the newly created item. In the event that such acquisition of ownership by the Seller does not occur, the Customer hereby assigns its future ownership or โ in the aforementioned proportion โ co-ownership of the newly created item to the Seller as security. If the Reserved Goods are combined or inseparably mixed with other items to form a single item and one of the other items is to be regarded as the principal item, the Seller shall, to the extent that the principal item belongs to it, transfer proportional co-ownership of the single item to the Purchaser in the ratio specified in sentence 1.
8.6 In the event of resale of the reserved goods, the Customer hereby assigns to the Seller, as security, the resulting claim against the buyer โ proportionally to the co-ownership share if the Seller has co-ownership of the reserved goods. The same applies to other claims that replace the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or claims from tort in case of loss or destruction. The Seller revocably authorizes the Customer to collect the claims assigned to the Seller in its own name. The Seller may revoke this direct debit authorization only in the event of enforcement.
8.7 If third parties access the reserved goods, in particular through seizure, the Customer shall immediately inform them of the Seller’s ownership and notify the Seller thereof to enable the Seller to enforce its ownership rights. If the third party is unable to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Purchaser shall be liable to the Seller for such costs.
8.8 The Seller shall release the retained goods as well as the items or claims replacing them to the extent that their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released shall be at the Sellerโs discretion.
8.9 Tritt der Verkรคufer bei vertragswidrigem Verhalten des Auftraggebers โinsbesondere bei Zahlungsverzug des Auftraggebers- vom Vertrag zurรผck (Verwertungsfall), ist er berechtigt, die Vorbehaltsware heraus zu verlangen.
9. Final Provisions
9.1 If the Customer is a merchant, a legal entity under public law, or a special fund under public law, or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Customer shall be, at the Seller’s discretion, the Seller’s registered office or the Customer’s registered office. However, for lawsuits against the Seller in these cases, the Seller’s registered office shall be the exclusive place of jurisdiction. Mandatory statutory provisions regarding exclusive places of jurisdiction shall remain unaffected by this provision.
9.2 The legal relationship between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 (CISG) shall not apply.
9.3 To the extent that the contract or these General Terms and Conditions of Delivery contain any gaps, those legally valid provisions shall be deemed agreed which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery had they been aware of such gap.
