Proof of resignation is required in TCS
Terms of sale and delivery of TCS TürControlSysteme GmbH
For use in business dealings with companies within the Federal Republic of Germany
I: General provisions
1. For the legal relationships between supplier and customer in connection with the deliveries and / or services of the supplier, the following terms of sale and delivery apply in the currently valid form, also for future transactions, even if we do not expressly refer to the validity of our sales and delivery terms Have indicated delivery conditions. General terms and conditions of the customer only apply to the extent that the supplier has expressly agreed to them in writing. The mutually consistent written declarations are authoritative for the scope of the deliveries.
2. The supplier reserves his unlimited property and copyright rights of use and exploitation to cost estimates, drawings and other documents. The documents may only be made available to third parties with the prior consent of the supplier and must be returned to the supplier immediately upon request if the order is not placed with the supplier. Paragraphs 1 and 2 apply accordingly to the purchaser's documents; however, these may be made available to third parties to whom the supplier has authorized deliveries.
3. The customer has the non-exclusive right to use standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The customer may create a backup copy of the standard software without express agreement.
4. Partial deliveries are permissible as long as they are reasonable for the customer.
5. The term "claims for damages" in these terms and conditions also includes claims for reimbursement of wasted expenses.
II: Prices, terms of payment and offsetting
1. The prices are ex works excluding packaging and shipping costs plus the applicable statutory sales tax. The prices valid on the day of the order confirmation will be calculated.
2. For custom-made products and deliveries that are made later than 4 months after the actual conclusion of the contract, price adjustments can be made due to changed raw material, wage, material and / or overhead costs.
3. Payments are to be made to the supplier's paying office within 30 days without any deductions or in accordance with separate condition agreements. If then, a discount is only granted on the net value of the goods, not on packaging and shipping costs or any services. In contrast, invoices for services are due immediately, strictly net, for payment after 5 working days.
4. The customer can only offset claims that are undisputed or have been legally established.
III: retention of title
1. The objects of the deliveries (reserved goods) remain the property of the supplier until all claims to which he is entitled against the customer from the business relationship have been fulfilled. If the value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier will release a corresponding part of the security interests at the request of the customer; the supplier is entitled to choose between various security rights when approving the release.
2. During the existence of the retention of title, the purchaser is prohibited from pledging or transferring ownership and resale is only permitted to resellers in the normal course of business and only on the condition that the reseller receives payment from his customer or makes the reservation that the property is only transferred to the customer passes over when the latter has fulfilled his payment obligations.
3. If the customer resells the goods subject to retention of title, he already now assigns his future claims from the resale against his customers with all ancillary rights - including any balance claims - to the supplier as a precaution, without the need for further special declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the purchaser assigns that part of the total price claim to the supplier that corresponds to the price of the reserved goods invoiced by the supplier.
4. a) The customer is permitted to process the reserved goods or to mix or combine them with other items. The processing takes place for the supplier. The purchaser shall keep the resulting new item for the supplier with the care of a prudent businessman. The new item is regarded as reserved goods.
b) The supplier and the customer already now agree that in the event of connection or mixing with other items that do not belong to the supplier, the supplier is in any case entitled to co-ownership of the new item to the extent of the proportion of the value of the connected items or mixed goods subject to retention of title at the value of the remaining goods at the time of combining or mixing. In this respect, the new item is deemed to be reserved goods.
c) The provision on the assignment of claims according to No. 3 also applies to the new item. However, the assignment is only valid up to the amount that corresponds to the value invoiced by the supplier for the processed, combined or mixed goods subject to retention of title.
d) If the customer connects the goods subject to retention of title with real estate or moveable items, he shall, without the need for further special declarations, also his claim, which he is entitled to as remuneration for the connection, with all ancillary rights in the amount of the ratio of the value of the connected Retained goods to the other connected goods at the time of connection to the supplier.
5. Until further notice, the customer is authorized to collect assigned claims from the resale. If there is an important reason, in particular in the event of default in payment, suspension of payments, opening of insolvency proceedings, protest against a bill of exchange or justified indications of overindebtedness or impending insolvency on the part of the customer, the supplier is entitled to revoke the customer's authorization to collect. In addition, after prior warning, the supplier can disclose the assignment by way of security within a reasonable period of time, utilize the assigned claims and demand that the customer disclose the assignment by way of security.
6. In the event of seizures, confiscations or other dispositions or interventions by third parties, the customer must notify the supplier immediately. If a legitimate interest is substantiated, the customer must immediately provide the supplier with the information necessary to assert his rights against the customer and hand over the necessary documents.
7. In the event of breaches of duty by the purchaser, in particular in the event of default in payment, the supplier is entitled to withdraw from the contract in addition to taking back the goods after the unsuccessful expiry of a reasonable deadline set for the purchaser; the statutory provisions on the dispensability of setting a deadline remain unaffected. The purchaser is bound to the publishing. Taking back or asserting the reservation of title or the seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly stated this.
IV: Deliveries and default
1. Compliance with deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the purchaser, necessary permits and releases, in particular of plans and drawings, as well as compliance with the agreed terms of payment and other obligations by the purchaser. If these requirements are not met in a timely manner, the deadlines will be extended accordingly; this does not apply if the supplier is responsible for the delay.
2. Is the failure to meet the deadlines due to
a) force majeure, e.g. B. mobilization, war, acts of terrorism, riot, or similar events (e.g. strike, lockout),
b) Virus and other attacks by third parties on the IT system of the supplier, insofar as these were carried out despite compliance with the usual care with protective measures,
c) Obstacles due to German, US American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the supplier is not responsible,
d) Failure to deliver on time or properly to the supplier,
the deadlines are extended appropriately. Deliveries are made from the central warehouse in Genthin in accordance with Incoterms®2010, using the cheapest and most suitable means of transport and routes. If the customer requests special shipping instructions, he will bear the resulting additional costs.
3. If the supplier is in default, the purchaser can - if he can credibly show that he has suffered damage as a result - a compensation of 0.5% for each completed week of the delay, up to a maximum of 5% of the price for the part of the deliveries which could not be used appropriately due to the delay.
4. Both claims for damages by the customer due to delay in delivery and claims for damages in lieu of performance that go beyond the limits specified in No. 3 are excluded in all cases of delayed delivery, even after a delivery deadline set by the supplier. This does not apply if there is liability in cases of intent, gross negligence or injury to life, limb or health. The purchaser can only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
5. At the request of the supplier, the customer is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or whether he insists on delivery.
6. If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the request of the customer, the customer may be entitled to a storage fee of 0.5% of the price of the delivery items, but no more than a total of 5%, for each additional month commenced. be calculated. The contracting parties are at liberty to provide evidence of higher or lower storage costs.
7. Foreign agencies or trading partners have contractually secured sales territory protection. Deliveries abroad require our written permission.
V: transfer of risk
The risk is transferred to the recipient when it has been dispatched or picked up, in the event of default in acceptance on the part of the customer when the goods are ready for delivery, even if carriage paid delivery has been agreed. We do not accept any liability for loss or damage in transit.
VI: Return of goods
The return of properly delivered goods is only possible with our express prior written consent. For undamaged goods, we deduct 20% of the net invoice amount for re-storage, testing and repackaging when credited. No credit will be issued for damaged goods or goods with a net value of less than 100.00 euros. Custom-made products can generally not be taken back.
The customer may not refuse to accept deliveries due to minor defects.
VIII: Material defects
The supplier is liable for material defects as follows:
1. All those parts or services that have a material defect are to be repaired free of charge at the option of the supplier, to be delivered again or to be rendered again, provided that the cause of the defect already existed at the time of the transfer of risk.
2. Claims for supplementary performance become statute-barred 12 months from the start of the statutory limitation period; The same applies to withdrawal and reduction. This period does not apply:
- as far as the law according to §§ 438 Paragraph 1 No. 2 (buildings and items for buildings) and 634a Paragraph 1 No. 2 (construction defects) BGB prescribes longer periods,
- in case of intent,
- in the case of fraudulent concealment of the defect, as well as
- in the event of non-compliance with a quality guarantee.
Claims for reimbursement of expenses by the purchaser in accordance with § 445a BGB (recourse by the seller) also expire 12 months from the start of the statutory limitation period, provided that the last contract in the supply chain is not a purchase of consumer goods. The legal regulations on suspension of expiry, suspension and restart of the deadlines remain unaffected.
3. Notices of defects by the purchaser must be made in writing without delay.
4. In the case of claims for defects, payments by the customer may be withheld to an extent that is reasonable in relation to the material defects that have occurred. The customer has no right of retention if his claims for defects have expired. If the notice of defects is wrong, the supplier is entitled to demand reimbursement of the expenses incurred by the customer.
5. The supplier is to be given the opportunity to provide supplementary performance within a reasonable period.
6. If the supplementary performance fails, the customer can - without prejudice to any claims for damages in accordance with No. 10 - withdraw from the contract or reduce the remuneration.
7. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating resources, defective construction work, unsuitable subsoil or the arise due to special external influences that are not required by the contract, as well as non-reproducible software errors. If improper changes, installation / removal or repair work are carried out by the customer or by third parties, no claims for defects exist for these or the consequences arising from them.
8. Claims of the customer due to the expenses necessary for the purpose of the supplementary performance are excluded insofar as the expenses increase because the object of the delivery has subsequently been moved to a location other than the customer's branch, unless the transfer corresponds to his intended use. This applies accordingly to claims for reimbursement of expenses by the purchaser in accordance with § 445a BGB (recourse by the seller), provided that the last contract in the supply chain is not a purchase of consumer goods.
9. Recourse claims of the customer against the supplier according to § 445a BGB (recourse of the seller) exist only insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects.
10. Claims for damages by the customer due to a material defect are excluded. This does not apply in the case of fraudulent concealment of the defect, failure to comply with a guarantee of quality, injury to life, limb or health and an intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the customer is not associated with the above regulations. Any further claims or claims other than those stipulated in Art. VIII on the part of the customer due to a material defect are excluded.
VIII / I: Simplified processing
We offer the qualified electrician a simplified processing of claims for defects as follows:
1. A limitation period of two years from proven assembly applies to claims for defects, but at least three years from the date of manufacture.
2. In the event of a complaint about defective products within the stated deadlines, we will waive the need to provide evidence of the initial nature of the defect.
3. In the event of claims for defects, we will deliver replacements as quickly as possible. It is mandatory for the electrician to return the defective product to us in advance or after the replacement.
4. In return, the qualified electrician waives the reimbursement of all further costs of replacing or repairing defective products, but bears the costs incurred himself.
IX: Industrial property rights and copyrights
1. Unless otherwise agreed, the supplier is obliged to make the delivery only in the country of the place of delivery without infringing industrial property rights and copyrights of third parties (hereinafter: property rights). If a third party raises justified claims against the customer due to the infringement of property rights through deliveries made by the supplier and used in accordance with the contract, the supplier is liable to the customer within the period specified in Art. VIII No. 2 as follows:
a) The supplier will, at his option and at his own expense, either obtain a right of use for the deliveries in question, change them so that the property right is not violated, or exchange them. If this is not possible for the supplier under reasonable conditions, the customer is entitled to the statutory right to withdraw from the contract or to reduce the price.
b) The supplier's obligation to pay damages is based on Art. XII.
c) The above-mentioned obligations of the supplier only exist if the customer immediately notifies the supplier in writing of the claims asserted by the third party, does not acknowledge a violation and the supplier reserves the right to take all defense measures and settlement negotiations. If the customer ceases to use the delivery in order to reduce damage or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgment of an infringement of property rights.
2. Claims by the purchaser are excluded insofar as he is responsible for the infringement of property rights.
3. Claims by the purchaser are also excluded if the infringement of property rights is caused by special requirements of the purchaser, by an application not foreseeable by the supplier or by the fact that the delivery is changed by the purchaser or used together with products not supplied by the supplier.
4. In the event of infringement of property rights, the provisions of Art. VIII No. 4, 5, 8 and 9 apply accordingly to the claims of the customer regulated in No. 1a). 5. In the event of other legal defects, the provisions of Art. VIII apply accordingly.
6. Any further claims or claims other than those stipulated in this Art. IX of the customer against the supplier and his vicarious agents due to a legal defect are excluded.
X: Reservation of performance
1. The fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law as well as no embargoes or other sanctions.
2. The customer is obliged to provide all information and documents that are required for export, shipment or import.
1. If delivery is impossible, the customer is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages is limited to 10% of the value of that part of the delivery that cannot be used appropriately due to the impossibility. This limitation does not apply if there is liability in cases of intent, gross negligence or injury to life, limb or health; this does not involve a change in the burden of proof to the detriment of the customer. The right of the customer to withdraw from the contract remains unaffected.
2. If events within the meaning of Art. IV No. 2 a) to c) significantly change the economic significance or the content of the delivery or have a significant effect on the supplier's operations, the contract will be appropriately adapted in good faith. If this is not economically justifiable, the supplier has the right to withdraw from the contract. The same applies if the required export permits are not issued or cannot be used. If he wishes to make use of this right of withdrawal, he must notify the customer immediately after recognizing the scope of the event, even if an extension of the delivery time was initially agreed with the customer.
XII: Other claims for damages
1. Unless otherwise regulated in these delivery conditions, claims for damages by the customer, regardless of the legal reason, in particular due to breach of obligations arising from the contractual relationship and from tortious acts, are excluded.
2. This does not apply if liability is as follows:
a) according to the Product Liability Act,
b) in the event of intent,
c) in the event of gross negligence on the part of owners, legal representatives or executives,
d) in the event of malice,
e) in the event of non-compliance with an assumed guarantee,
f) due to culpable harm to life, body or health, or
g) due to the culpable breach of essential contractual obligations.
The claim for damages for the breach of essential contractual obligations is limited to the contract-typical, foreseeable damage, unless another of the aforementioned cases is present.
3. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
XIII: Place of Jurisdiction and Applicable Law
1. If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the supplier's registered office, Stendal. However, the supplier is also entitled to sue at the customer's place of business.
2. This contract including its interpretation is subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIV: Binding nature of the contract
The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This does not apply if adherence to the contract would represent unreasonable hardship for one of the parties.
The current terms of sale and delivery can be accessed at any time at http://www.tcsag.de/tcs/agb/.
Subject to changes or errors and no liability is accepted for printing errors.
Genthin, September 3rd, 2018
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