General Terms and Conditions of TESWIC Technologies Sigrid Waibel
Hereinafter referred to as “TESWIC
1 General provisions
1.1 The scope, quality and all terms and conditions for deliveries and services (hereinafter referred to as the “contractual objects”) are exclusively based on the mutual, concurring, written declarations of the contractual partners and on the provisions of these terms and conditions (hereinafter referred to as the “contract”). The customer’s general terms and conditions of business shall only apply insofar as TESWIC has expressly agreed to them in writing.
1.1 TESWIC reserves all property and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter referred to as “Documents”) without restriction. The documents may only be made available to third parties with the prior consent of TESWIC and must be returned to TESWIC immediately on request if the order is not placed with TESWIC. Sentences 1 and 2 apply accordingly to the customer’s documents; however, these may be made accessible to third parties to whom TESWIC has permissibly transferred deliveries and/or services of the contractual items.
1.2 Partial deliveries are permitted.
1.3 The customer must inform TESWIC of any standards and regulations that apply to the contractual items at the customer’s place of business and/or the destination.
1.4 TESWIC reserves the right to modify the contractual items with regard to design, material and/or execution, provided this does not adversely affect the agreed quality.
2. Prices and terms of payment
2.1 Prices are in EUR ex works (EXW, Incoterms® 2010) excluding packaging and all taxes, duties or levies payable under applicable law. The customer undertakes to pay or reimburse any taxes, customs duties or charges imposed on TESWIC or its suppliers.
2.2 If TESWIC has assumed responsibility for installation, assembly or other on-site services, the customer shall bear all incidental costs associated with the services (such as, but not limited to, costs for official permits, travel expenses) in addition to the agreed remuneration, unless otherwise agreed.
2.3 Payments shall be made to the bank account specified by TESWIC. Any bank charges incurred will be borne by the customer.
2.4 The customer may only offset or assert a right of retention on account of such claims if they have been recognised by TESWIC in writing or have been legally established. Furthermore, the customer only has the right of retention with regard to claims that are directly related to this contract.
2.5 In the case of contracts with a deadline for the execution of the deliveries and/or services of the contractual items of more than four months from the conclusion of the contract, TESWIC has the right to increase the prices in accordance with the cost increases that have occurred due to collective agreements or increases in the price of materials or an increase in the statutory VAT rate. If the increase amounts to more than 5% of the agreed price, the customer can waive the continuation of the execution of the contract within 10 days after notification of the price adjustment. Unconditional acceptance of the subjects of the contract shall be deemed to be consent to the price adjustment.
2.6 Unless otherwise agreed between the contracting parties, invoices are payable immediately and must be settled without deduction within 10 days of the invoice date. In the event of non-compliance with the agreed terms of payment, interest on arrears shall be due without reminder from the 11th day after the invoice date at a rate of eight (8) percentage points above the base rate of the European Central Bank.
2.7 Unless otherwise agreed between the contracting parties, prepayment shall generally apply to export transactions.
2.8 Should TESWIC become aware of the risk of the customer’s inability to pay after the contract has been concluded, TESWIC shall be entitled to execute outstanding contractual items only against advance payment or the provision of security. If the advance payments or securities have not been provided even after a reasonable period of grace has expired, TESWIC may withdraw from this contract in whole or in part. TESWIC reserves the right to assert further rights.
3. Retention of title
3.1 The deliveries remain the property of TESWIC until all claims against the customer to which TESWIC is entitled under the business relationship have been satisfied. By concluding the contract, the customer authorises TESWIC to enter or disclose the retention of title in the required form in public registers, books or similar documents at the customer’s expense and in accordance with the applicable national regulations.
3.2 For the duration of the retention of title, the customer is prohibited from pledging or assigning the goods as security and resale is only permitted to resellers in the normal course of business and only on condition that the reseller receives payment from its purchaser or makes the reservation that the title is not transferred to the purchaser until the latter has fulfilled its payment obligations.
3.3 The customer must inform TESWIC immediately in writing of any seizures, confiscations or other dispositions or interventions by third parties that could lead to the loss of TESWIC’s rights to the deliveries.
3.4 In the event of significant breaches of duty by the customer, in particular default of payment, TESWIC shall be entitled to take back the deliveries. The customer is obliged to surrender the goods. Taking back the deliveries, asserting the retention of title or taking possession of the deliveries does not constitute a withdrawal from the contract, unless TESWIC expressly stipulates otherwise.
3.5 The customer is obliged to handle the purchased goods with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure the goods adequately at his own expense against theft, fire and water damage at replacement value. He hereby assigns his claims under the insurance contracts to TESWIC in advance.
4. Deadlines for contractual objects; default
4.1 The delivery time is based on the agreements of the contracting parties. An expected delivery date specified by TESWIC is not binding. Delivery periods that have been agreed as binding must be confirmed in writing by TESWIC.
4.2 Compliance with agreed deadlines for the delivery of goods and services for the contractual items is subject to the timely receipt by TESWIC of all documents, necessary permits and releases to be provided by the customer, in particular plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these prerequisites are not met in good time, the deadlines shall be extended accordingly and the customer shall reimburse TESWIC for all additional costs and expenses arising from this delay; this shall not apply if TESWIC is responsible for the delays.
4.3 Deadlines shall also be extended appropriately if non-compliance is due to one of the following reasons:
(i) force majeure, e.g. acts of terrorism, riot, mobilisation, acts of war, or omissions by civil or military authorities or similar events (e.g. strike, lockout),
(ii) Malicious programs and attacks by third parties on the IT system of TESWIC, insofar as these were carried out despite observance of the usual care taken with protective measures,
(iii) obstacles due to German, US-American as well as other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which TESWIC is not responsible, or
(iv) failure to supply TESWIC in a timely or proper manner
4.4 If TESWIC is culpably in default, the customer may – provided he can prove that he has suffered a loss as a result – demand flat-rate compensation for each completed week of the delay in the amount of 0.5%, but no more than 5% in total, of the price of that part of the contractual items that TESWIC is in default with.
4.5 Claims for damages by the customer that exceed the limits specified in clause 4.4 are excluded in all cases of delayed delivery and/or service. This shall also apply after the expiry of any deadline set by TESWIC for delivery and/or service. The customer shall only be entitled to waive further implementation of the contract due to delay if the delivery and/or service has not been made within a reasonable period of grace granted to TESWIC, the compensation for delay specified in section 4.4 has been exhausted and TESWIC does not voluntarily pay lump-sum compensation in addition to the compensation for delay specified in section 4.4 within ten (10) working days of receipt of the customer’s declaration of waiver.
4.6 Any further rights and remedies for default other than those set out in this clause 4, in particular claims by the Customer for damages, are excluded.
4.7 If dispatch or delivery is delayed at the Customer’s request by more than one month after notification of readiness for dispatch, the Customer may be charged storage fees of 0.5% of the price of the supplies for each month or part thereof, but in no case more than a total of 10% of the total contract price. The contractual partners are at liberty to prove higher or lower storage costs.
5. Transfer of risk and acceptance
5.1 The risk for the contractual objects is transferred to the customer as follows: EXW, Incoterms® 2010.
5.2 If the dispatch, delivery, commencement or completion of installation, assembly or other on-site services is delayed for other reasons for which the Customer is responsible or if the Customer is in default of acceptance for other reasons, the risk shall pass to the Customer at the point in time at which it would have passed to the Customer without the aforementioned delays.
5.3 The customer may only refuse to accept deliveries if the deliveries are obviously and significantly defective and the customer notifies TESWIC of this in writing within three (3) days of delivery. In addition, the Customer shall ensure that the deliveries are secured and protected until TESWIC can dispose of their whereabouts.
5.4 On receipt or receipt of the freight documents, the Customer must check the deliveries and complain to the last carrier:
(i) any transport damage to the deliveries,
(ii) Complaints in connection with the dispatch or transport of the deliveries.
The customer is obliged to immediately send TESWIC a copy of the complaint.
6. Liability for material defects
TESWIC is liable for material defects, including non-compliance with guarantees, as follows
6.1 All those deliveries and services of the contractual items that exhibit a material defect shall, at the discretion of TESWIC, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk. If defective parts are replaced, TESWIC may demand the return of the defective parts.
For deliveries outside Germany, the warranty is limited to the delivery of replacement parts free of charge.
6.2 Claims for rectification of defects shall become time-barred 12 months after the transfer of risk; the same shall apply to the reduction in price. In the case of the sale of used goods, any warranty is excluded. Service, adjustment and readjustment work is not owed as warranty work.
6.3 The customer shall inspect the contractual objects without delay. Notifications of defects by the customer must be made immediately in writing.
6.4 The customer is only entitled to withhold payments due to defects if TESWIC has acknowledged the defects in writing. If the notification of defects is unjustified, TESWIC shall be entitled to demand reimbursement from the customer for the expenses incurred by TESWIC.
6.5 TESWIC must be given the opportunity to rectify the defects within a reasonable period of time.
6.6 If a reasonable deadline set by TESWIC expires without the defect being rectified or if the rectification of the defect is ultimately unsuccessful, the customer may reduce the remuneration.
6.7 There shall be no claims based on defects in the event of insignificant deviations from the agreed quality, insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, failure to observe the operating instructions, excessive strain, unsuitable equipment or as a result of particular external influences that are not provided for under the contract. If the customer or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the resulting consequences.
6.8 The place of rectification of defects is the original place of delivery or performance of the affected deliveries or services of the contractual objects. In order to rectify the defects, the customer must grant TESWIC access to the defective contractual items, including their dismantling and assembly, at no cost to TESWIC. Complained deliveries must be sent to TESWIC at its request and at the customer’s expense. Any costs incurred for repairs carried out by TESWIC at the factory or a repair centre shall be borne by TESWIC. If it is not possible to rectify the defect in the factory or at a TESWIC repair centre, the associated costs shall be borne by the Customer, insofar as they exceed the usual transport, personnel, travel and accommodation costs.
6.9 Any further claims by the Customer or claims other than those regulated in this clause 6 on account of a material defect, in particular the right to claim damages, are excluded.
7. Industrial property rights and copyright
7.1 Unless otherwise agreed, TESWIC is obliged to provide the contractual items free of industrial property rights and copyrights of third parties (hereinafter referred to as “property rights”) only in the country of the customer’s registered office. If a third party asserts justified claims against the customer due to the infringement of industrial property rights by contractual items produced by TESWIC and used in accordance with the contract, TESWIC shall be liable to the customer within the period specified in section 6.2 as follows:
(i) TESWIC shall, at its own discretion and at its own expense, either obtain a right of use for the contractual items concerned, modify them so that the property right is not infringed, or replace them. If this is not possible for TESWIC on reasonable terms, the Customer shall be entitled to a reasonable reduction in the remuneration for the contractual items concerned.
(ii) TESWIC’s aforementioned obligations shall only apply insofar as the customer informs TESWIC immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and TESWIC reserves the right to take all defensive measures and conduct all settlement negotiations. If the customer ceases to use the contractual items in order to minimise damage or for other important reasons, the customer is obliged to inform the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
7.2 Claims of the customer are excluded if he is responsible for the infringement of property rights.
7.3 Claims by the customer shall also be excluded if the infringement of property rights is caused by special instructions from the customer, by an application not foreseeable by TESWIC or by the fact that the contractual items have been modified by the customer or used together with products not supplied by TESWIC.
7.4 In the event of infringements of industrial property rights, the provisions of Clauses 6.4 and 6.5 shall apply accordingly to the claims of the Customer regulated in No. 1 (i).
7.5 In the event of other defects of title, the provisions of clause 6 shall apply accordingly.
7.6 Any further or other claims of the customer against TESWIC and its vicarious agents other than those regulated in this clause 7 due to a defect of title, in particular the right to claim damages, are excluded.
8. Reservation of performance
Fulfilment of the contract by TESWIC is subject to the provison that fulfilment is not hindered by any obstacles arising from national or international foreign trade law regulations or embargos and/or other sanctions.
9 Impossibility / Adjustment of contract
9.1 If the delivery and/or performance of the contractual items is impossible for reasons for which TESWIC is responsible, the customer shall be entitled to demand compensation. However, the customer’s claim for compensation is limited to 10% of the value of that part of the contractual items for which delivery and/or performance is impossible. Apart from the termination of the contract for the future, the customer is not entitled to any further rights, in particular the right to withdraw from the contract or to demand a reduction in price or further compensation.
9.2 In the event that a change in the applicable law or other relevant laws or changes in the state of the art has an impact on the contractual items or their function or has a significant effect on TESWIC’s business or in the event of unforeseeable events as defined in clause 4.5, the contract shall be adjusted appropriately taking into account the changed circumstances, in particular with regard to an adjustment of the contractually agreed total price for the delivery of the contractual items and services. If this is not economically justifiable, TESWIC has the right to terminate the contract. If TESWIC wishes to make use of this right of termination, TESWIC must inform the customer immediately after recognising the consequences of the event, even if an extension of the deadlines for the delivery of the contractual items was initially agreed with the customer. In all other respects clause 13.5 sentence 2 shall apply accordingly.
10 Other claims for damages
10.1 Further claims and rights of the customer against TESWIC, or claims and rights other than those regulated in the contract, are excluded, regardless of their legal basis. Claims by the customer for damages, in particular for loss of production, interruption of operations, loss of use, loss of profit or lost income, capital costs, loss of interest, loss of data, claims for damages in connection with contracts between the customer and third parties, direct, indirect or consequential damages are excluded.
10.2 This does not apply where liability is mandatory, e.g. but not conclusive under the Product Liability Act, in cases of intent, gross negligence on the part of superiors and senior executives of TESWIC or in cases of fraudulent concealment of defects. This provision is also applicable to clauses 4, 6, 7 and 9.
10.3 This limitation of liability also applies in favour of subcontractors, suppliers, agents, superiors, managers and employees of TESWIC.
TESWIC is entitled to transfer rights and obligations under the contract to third parties. The transfer will not become effective if the customer objects to it within a period of one week after written notification of the transfer. TESWIC will point this out in the written notification.
The customer must treat all information provided to the customer by TESWIC in connection with this contract as confidential. The customer must use the information only for the purpose specified in the contract. The obligation to maintain confidentiality does not apply to information in respect of which the customer can prove that
(i) these are already generally known or become generally known without the customer breaching his obligation of secrecy or
(ii) they were already known to the customer at the time of receipt without any obligation to maintain secrecy or
(iii) he has lawfully received them from third parties without a confidentiality obligation or
(iv) it has developed them independently, without the use of information communicated under this Agreement. The obligations of this clause 12 shall continue to apply beyond the end of the Agreement, irrespective of the manner in which the Agreement is terminated.
13 Suspension / termination
13.1 TESWIC is entitled to suspend deliveries and services of the contractual items, notwithstanding other provisions of this contract:
(i) if the customer is more than 30 days in arrears with payment or part thereof, or
(ii) if the customer does not perform the cooperation obligations necessary for the fulfilment of the contract, or
(iii) if, after conclusion of the contract, TESWIC becomes aware of the risk of the customer’s inability to pay, as long as the customer does not make an advance payment or provide security despite being requested to do so.
13.2 Any additional costs incurred by TESWIC due to a suspension of its contractual obligations shall be borne by the customer. The customer must surrender any deliveries that have already been made on request. The taking back of the deliveries, the assertion of a retention of title or a security interest or the assertion of a claim in respect of the deliveries by TESWIC shall not be deemed to be a termination or other termination of the contractual relationship, unless expressly declared by TESWIC.
13.3 If the conditions set out in No. 13 (i) or (ii) are met, TESWIC shall be entitled, notwithstanding other provisions of this contract, to terminate this contract in whole or in part in writing with 30 days’ notice.
13.4 Each contractual partner is entitled to terminate the contract in writing:
(i) if any proceedings are instituted against the other party for insolvency or bankruptcy, or if the other party makes a general assignment for the benefit of its creditors, or if a receiver is appointed as a result of the insolvency of the other party, or, in the event that any such proceedings are instituted against the other party (but not by the other party itself) and such proceedings are not dismissed within 45 days of the filing thereof, or
(ii) if the other party is insolvent or files a petition for protection under any bankruptcy, insolvency, moratorium or composition or debt settlement act.
13.5 Notwithstanding other provisions of this Agreement, TESWIC has the right to terminate the Agreement if an event as defined in clause 4.3 continues for a period of more than 180 days. Under no circumstances shall TESWIC be liable for any damages and costs arising from or in connection with a termination in accordance with this clause 13.5.
14 Place of jurisdiction, applicable law
14.1 The place of performance and payment is Überlingen.
14.2 The place of jurisdiction for all disputes arising from this contract is the court responsible for TESWIC’s place of business. TESWIC is also entitled to assert its claims at the purchaser’s general place of jurisdiction.
14.2 This contract and all legal relations between the parties are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
15.1 Errors, inadvertent gaps and contradictions in the contract are to be treated and interpreted in accordance with the basic idea of the contract on the basis of mutual trust and with due regard for the mutual interests of both contracting parties.
15.2 The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the contracting parties.