General Terms and Conditions TECNARO GmbH
1. These Terms and Conditions apply to all transactions between TECNARO and the Customer, even when they are not mentioned in subsequent contracts.
2. Conflicting or additional conditions defined by the Customer, or ones that diverge from these Terms and Conditions are not considered part of the contract, unless TECNARO has explicitly recognised their applicability in writing. These Terms and Conditions are applicable even when TECNARO unreservedly completes a delivery to the Buyer in full knowledge of the Customer’s conflicting or divergent conditions.
3. Any additional or divergent conditions to these Terms and Conditions, which have been made contractually binding between TECNARO and the Customer, must be set down in writing in the contract. This also applies if the requirement of the written form is cancelled.
4. Any rights that TECNARO is entitled to under existing legal provisions remain unaffected.
II. TERMINATION AND ALTERATIONS
1. All prices are subject to alteration and non-binding.
2. Illustrations, drawings and data about weight, measurements, performance and consumption, as well as other descriptions of goods in the pricing documents, are only approximate unless they are expressly stated to be binding. They represent no agreement or guarantees about the condition of the goods.
3. TECNARO retains all titles and intellectual property in all its pricing documents. These documents are confidential and may not be disclosed to third parties.
4. Any confirmation of an order by TECNARO that is created electronically and does not bear a signature and name shall be deemed to constitute written form. The silence of TECNARO with regard to offers, orders, requests or other declarations by the Customer does not imply approval and must be explicitly confirmed in writing. Obvious errors, spelling and printing mistakes and miscalculations that occur in order confirmations are not binding on TECNARO.
III. SCOPE OF DELIVERY
1. TECNARO’s written confirmation of the order will determine the scope of delivery. Changes to the scope of delivery must be confirmed in writing by TECNARO to be valid. TECNARO reserves the right to make changes to the composition, form and colour, insofar as the alterations are not considerable and reasonable for the Customer.
2. TECNARO is entitled to make partial deliveries.
IV. CONSULTANCY SERVICES
1. TECNARO performs any consultancy services to the best of its knowledge. Data and information on the suitability and use of its goods do not exempt the Customer from his duty to conduct his own checks and tests regarding the suitability of the goods for the processes and purposes foreseen by the Customer. TECNARO assumes no liability for, or arising from, the application, utilisation, processing or other use of this information or products. The Customer assumes all responsibility for, and all liability arising out of, the application, utilisation and processing of the goods and use of the information. TECNARO accepts no liability for any infringements of patent, copyright or other rights owned or managed by third parties by the Customer’s application, utilisation or processing of the products, or the Customer’s use of the information.
V. DELIVERY TIME
1. Delivery dates and periods must be agreed in writing. Delivery dates and periods are non-binding unless explicitly defined as binding.
2. The delivery period begins when TECNARO sends written confirmation of the order, though not before the Customer has met the conditions for due completion of the contract (documents, authorisations and permissions, clarification of all technical aspects and receipt of the agreed down payment). Adherence to the delivery period presupposes that the Customer fulfils his other contractual obligations.
3. The delivery period is deemed to have been complied with when the consignment leaves the factory/warehouse, or when TECNARO has communicated readiness for dispatch prior to the expiration of this period. Delivery is subject to TECNARO receiving supplies punctually and in good order.
4. If there is a delay in delivery, the Customer is entitled to withdraw from the contract associated with the late single delivery after the expiry of a reasonable extension period with the threat of cancellation, communicated by the customer to TECNARO after the start of the delay. However, we would point out that the goods will only be delivered after all outstanding payments have been paid in full. Possible delays in delivery due to outstanding debts do not constitute a default on delivery.
5. If TECNARO has agreed a framework deal for future deliveries with the Customer featuring fixed delivery dates, and the Customer does not make the release order or allocation on time, TECNARO is entitled, after the expiry of a reasonable extension period, to deliver and invoice for the goods, terminate the contract and require compensation instead of performance if the Customer is at fault.
VI. PASSING OF RISK
1. The risk shall pass to the Customer as soon as the goods are given over to the deliverer, or leave TECNARO’s warehouse for the purpose of dispatch. This also applies to partial deliveries and if TECNARO has assumed the transport costs or agreed to deliver and/or assemble the goods for the Buyer. Upon the Customer’s express request, TECNARO will insure the goods for transport at the Customer’s expense against all risks defined by the Customer.
2. If the Customer delays acceptance or is in default of other duties of cooperation, TECNARO is entitled to demand compensation for any damages incurred, including any additional expenses. The risks of accidental deterioration and accidental loss are passed to the Customer if he defaults on acceptance. TECNARO may, after the fruitless expiry of a reasonable grace period, dispose of the goods otherwise and make the delivery to the Customer within a reasonably extended period.
3. The Customer is to accept delivered goods without prejudice to any later claims, even if they contain minor defects.
VII. PRICES AND PAYMENT
1. Prices are “ex-works”, including packaging, unless otherwise agreed. Statutory value added tax (VAT) is not included in the price. The amount of VAT applicable on the day of invoicing is shown separately on the invoice.
2. Orders for which no fixed price has been explicitly agreed are invoiced at TECNARO’s list price on the day of delivery. The display of the list price applicable on the day of ordering on an order form or an order confirmation does not constitute an agreement on a fixed price. If any production costs change before the day of delivery, TECNARO is entitled to adjust its prices without need for a quotation or order confirmation.
3. Unless agreed otherwise, the delivery price is to be paid net and without any deductions with 14 days of delivery. Any bank or Paypal charges are borne by the Customer. The day of payment is deemed to be the day when TECNARO can dispose of the price of delivery. In the event of a delay in payment, the Customer shall pay interest on arrears at a rate of 9 percentage points p.a. above the relevant base rate. TECNARO reserves the right to claim further damages.
4. If TECNARO has reasonable grounds to doubt the Customer’s ability to pay, especially if the latter is behind in payments, TECNARO may revoke any terms of payment that have been granted without prejudice to further claims, and make further deliveries dependent on prepayment or other security.
5. The Customer is only entitled to offset counterclaims against payments due if the claims have an unappealable legal status or are undisputed. The Customer will only have a valid right to withhold payment if this is based on contractual entitlements.
6. When making deliveries or services to another EU country, the Customer must communicate the VAT number used for taxation of purchases within the EU to TECNARO when placing his order and at the very latest before the order is completed. For deliveries within the EU that are not carried out or initiated by TECNARO, the Customer must provide the mandatory tax proof of reception of goods, known as the “confirmation of arrival”. If the Customer does not supply this proof, he must pay an additional charge for the VAT due on the invoice amount within Germany.
VIII. DEFECTS AND WARRANTY
1. The Customer’s warranty rights require that he check the delivered goods upon delivery and immediately communicate any damages detected to TECNARO, at the latest within two weeks of receiving the goods. Hidden defects must be signalled in writing to TECNARO immediately after they are detected. The Customer must describe the defects to TECNARO in writing.
2. In the event of defects in the products, TECNARO shall be entitled, at the seller’s own discretion, to perform subsequently by remedying the defect or delivering a defect-free product. If remedial action is taken, TECNARO shall bear all costs required in this performance, in particular transportation, road, labour and material costs, in as far as these are not increased as a result of the products being taken to another location than the delivery address. Personnel and material costs claimed by the Customer will be charged at net cost prices.
3. If TECNARO is not willing or not able to perform subsequently, the customer shall be entitled, at the Customer’s own discretion, to reduce the price of delivery or cancel the contract. This stipulation shall also apply if the subsequent performance fails, if the Customer cannot be reasonably expected to accept it or if it is delayed beyond reasonable deadlines for reasons for which TECNARO can be held responsible.
4. The right of the Customer to rescind the contract shall be excluded if the Customer is unable to return the received goods and this inability is not due to the fact that return is impossible due to the nature of the performance received, is due to reasons for which TECNARO can be held responsible, or if the defect only showed during the processing or conversion of the products. The right of the customer to rescind the contract shall also be excluded if TECNARO cannot be held responsible for the defect, or if TECNARO is required to grant compensation for lost value instead of return.
5. No complaints for defects shall arise from natural wear and tear, improper handling, improperly executed modifications, or repairs to the products by Customer or third parties. This stipulation shall also apply to defects for which the Customer can be held responsible or which can be traced back to a technical cause other than the original defect.
6. Claims by the Customer for repayment of expenses instead of damages in place of performance are excluded, provided that the expenses would not also have been incurred by a reasonable third party.
7. TECNARO shall have unlimited liability for damages resulting from the breach of a warranty or damage to life, limb or health. The same stipulation shall apply to intent and gross negligence. In the event of slight negligence, TECNARO shall only be liable if material obligations have been breached which ensue from the nature of the contract and are of particular significance for the achievement of the objective of the contract. In the event of violation of such obligations, default and impossibility, TECNARO’s liability shall be limited to such damages as are typically to be expected within the context of the contract. Any mandatory statutory liability for product defects shall remain unaffected.
8. The period of limitation for claims for defects by the Customer shall be one year, commencing from the delivery of the products, insofar as the defect is not in a building, or the defective goods were not used for a building and were not used in accordance with the usual instructions for a building, causing the defect. The period of limitation also applies to tort claims caused by a defect in the goods. TECNARO’s unlimited liability for damages resulting from the breach of a warranty or damage to life, limb or health, for intent, gross negligence and product defects shall remain unaffected. No statement given by the seller with regard to a claim for defects asserted by the Customer shall be deemed to represent the entry into negotiations regarding the claim or the causes on which the claim is based, if the claim for defects is comprehensively rejected by TECNARO.
IX. RETENTION OF TITLE
1. Until the Customer has paid TECNARO in full for all arrears related to their business relationship, the products supplied shall remain the property of TECNARO. The Customer shall treat the products subject to retention of title with due care during the time of retention of title. In particular, the Customer shall adequately insure the products at their replacement value against fire, water and theft at TECNARO’s request. The Customer hereby assigns all rights to compensation from this insurance to TECNARO. TECNARO may request the Customer to provide proof of this insurance policy. TECNARO hereby accepts this assignment. Should this assignment prove impossible, the Customer irrevocably instructs his insurer to make any potential payments only to TECNARO. Any further-reaching claims by TECNARO shall remain unaffected.
2. The sale of any products subject to retention of title shall only be allowed in the normal course of business, unless a case of default in payment exists. The Customer shall not be entitled to pledge any products subject to retention of title, transfer them by way of security or dispose of them in any other way which would jeopardize TECNARO’s property rights. In the event of seizure or other actions of third parties, the Customer shall inform TECNARO of such an event without delay in writing providing all necessary information, and the Customer shall inform the third party of TECNARO’s property rights and cooperate with TECNARO in performing measures for the protection of the products subject to retention of title.
3. The Customer hereby assigns any receivables from the resale of the products inclusive of all ancillary rights to TECNARO, irrespective of whether the products subject to retention of title are sold without or following processing. TECNARO hereby accepts this assignment. In the event that such an assignment is not permissible, the Customer hereby instructs the third party debtor irrevocably to make any payments exclusively to TECNARO. The Customer is hereby revocably authorized to collect the receivables assigned to TECNARO in its own name in trust on behalf of TECNARO. The collected amounts shall be passed on to TECNARO without delay. TECNARO is entitled to revoke the Customer’s collection authority and the Customer’s authority to resell the products for good cause, in particular when the Customer does not properly fulfil its payment obligations towards TECNARO, delays payment, discontinues payments, or if bankruptcy proceedings are instigated with regard to the Customer’s assets.
4. In the event of a delay in payment by the Customer, TECNARO shall be entitled, notwithstanding any of TECNARO’s other rights, to rescind the contract without further notice. The Customer shall grant TECNARO or any agent commissioned by TECNARO immediate access to the products subject to retention of title, and shall surrender the products. After notification with a reasonable period of notice, TECNARO shall be entitled to utilize the products subject to retention of title in another way to satisfy the TECNARO’s claims against the Customer which have fallen due.
5. Any processing or conversion of the products subject to retention of title by the Customer shall always be performed on behalf of TECNARO. The Customer’s contingent right to the products subject to retention of title continues with regard to the processed or converted goods. If the products are processed or converted together with other items not belonging to TECNARO, TECNARO shall be entitled to shared ownership in the new items as a proportion of the value of the supplied products to the value of the other processed items at the time of processing or conversion. The same stipulation shall apply if the pro- ducts are connected or mixed with other items not belonging to TECNARO in such a way that TECNARO loses its full property rights. The Customer shall keep the new items safe for the seller. With regard to the item created by processing, conversion, connection or mixing, the same conditions shall apply as for the products subject to retention of title.
6. At the Customer’s request, TECNARO shall release the securities to which TECNARO is entitled to the extent that the realizable value of such securities, taking into account customary bank downward valuation adjustments, exceeds the claims of TECNARO from the business relationship with the Customer by more than 20 percent. During valuation, the invoiced value of the products subject to retention of title and, in the case of receivables, the nominal value, shall be authoritative. TECNARO shall select the individual objects to be released at its own discretion.
7. For the case of deliveries into other legal systems where the retention of title rule does not provide the same legal security as in the Federal Republic of Germany, the Customer hereby grants TECNARO a corresponding security interest. If additional measures are required for the granting of such a security interest, the Customer shall do everything required in order to grant TECNARO such a security interest. The Customer shall cooperate in all measures required and conducive to ensuring the effectiveness and enforceability of such a security interest.
X. PRODUCT LIABILITY
1. The Customer shall not modify the products. In particular, the Customer shall not modify or remove any warnings regarding risks in the case of improper use of the contractual products. In the event of any breach of this obligation, the Customer shall indemnify TECNARO internally for any third-party product liability claims if the Customer can be held responsible for the defect causing the liability.
2. The Customer further undertakes not to deliver the goods to a country outside the European Union, and to obligate its customers to itself and, through contracts with third parties, to TECNARO, so that both the Customer and TECNARO may make a claim against the customer for breaching the commitment not to deliver the goods outside the European Union, in particular a right to recourse in the event of claims for product liability against TECNARO. If the Customer breaches the aforementioned obligation, this exempts TECNARO internally from any product liability claims by third parties.
3. If TECNARO has cause to recall or issue an alert about products due to a product defect, the Customer shall use its best efforts to cooperate with and support TECNARO, in particular with regard to the determination of the requisite customer data.
4. The Customer shall inform TECNARO in writing without delay of any risks which come to the Customer’s attention with regard to the use of the contractual products and possible product defects.
XI. FORCE MAJEURE
1. If TECNARO is prevented from fulfilling its contractual obligations, in particular delivery of the products, by a case of force majeure, TECNARO shall be relieved from its duty to perform for the duration of the obstacle plus an appropriate start-up time, with no right of damages accruing for the Customer. This stipulation shall also apply if the fulfilment of TECNARO’s obligations is unduly impeded or temporarily made impossible by events which TECNARO could not have foreseen and for which TECNARO cannot be held responsible, in particular labour disputes, official actions by public authorities, lack of energy supply, suppliers’ delivery problems or significant interruptions of operations. This stipulation shall also apply if such circumstances occur with subcontractors. TECNARO cannot be held responsible for such events even if TECNARO is already in default.
2. TECNARO shall be entitled to rescind the contract if such an obstacle persists for more than four months and the fulfilment of the contract is of no further interest to TECNARO because of the obstacle. At the Customer’s request, TECNARO shall declare at the end of such period whether it intends to exert its right of rescission or supply the products within a reasonable period.
XII. CONFIDENTIALITY AND PUBLICITY
WITH THE CUSTOMER’S PRODUCTS
1. The parties hereby agree to keep all information designated as confidential or recognizable as trade or business secrets made accessible to them in connection with this agreement or for other reasons confidential for an unlimited period of time and to neither record or otherwise utilize such information unless required for the purposes of this agreement. The parties shall take appropriate contractual measures with their employees and any third parties working on their behalf will refrain, without restriction as to time, from processing, transmitting or unauthorized recording of such trade and business secrets. The parties agree that any sample or material which may be supplied by one party to the other for the purpose of evaluation or testing will never be analyzed regarding the chemical structure, composition and so forth.
2. TECNARO is entitled, should the case arise, to use photos and other material in its operations and publicity to indicate that the Customer’s products were manufactured using TECNARO’s goods.
XIII. FINAL CLAUSES
1. The rights and obligations of the Customer shall not be assigned to third parties without the written agreement of TECNARO.
2. The language of the contract is German.
3. The law of the Federal Republic of Germany shall apply to the legal relationship between TECNARO and the Customer to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. The exclusive legal venue for all disputes arising from the business relationship between TECNARO and the Customer is TECNARO’s place of business. TECNARO shall also be entitled to bring legal actions at the place of business of the Customer or any other permissible legal venue.
5. The place of fulfilment for all activities of the Customer and TECNARO is TECNARO’s place of business.
6. Should a stipulation of these General Terms and Conditions of Sale be or become ineffective or unenforceable in full or in part or should a gap exist in these Terms and Conditions, this shall not affect the validity of the remaining stipulations. The ineffective or unenforceable stipulation shall be replaced by an effective and enforceable stipulation which approximates the purpose of the ineffective or unenforceable stipulation most closely. In the event of a gap, a stipulation shall be deemed to have been agreed which corresponds to what would have been agreed if TECNARO and the Customer had considered the matter from the start.