Terms and Conditions of Sale of TrigasFI GmbH
§1 Section 1 – Area of Validity
1. Our terms and conditions of sale are valid exclusively. We shall not recognize contradicting terms and conditions of sale nor terms and conditions of the buyer if it differs from ours, unless we expressly agree to its validity in writing. Our terms and conditions of sale also apply even if we sell to the buyer unreservedly having been advised of conditions contradictory or different from these conditions on the side of the buyer.
2. All the agreements made between us and the buyer for the purpose of executing this contract are to be put in writing in this contract.
3. The terms and conditions of sale are only valid for companies in accordance with section 14 paragraph 1 and section 310 paragraph 1 of the German Civil Code.
4. These conditions of sale are also valid for all business transactions with the buyer in future.
§ Section 2 Quotations – Contract Conclusion
1. Our offers are subject to confirmation if the word “binding” is not expressly added.
2. We reserve the rights of ownership and copyrights to all illustrations, drawings, calculations and other documents. They may not be made accessible to a third party without our express approval. The buyer requires our express approval before passing on these documents to a third party. Offers of the buyer only apply if we expressly declare them as accepted. Our silence towards such offer does not mean acceptance on our side. The same applies to electronic form of trading confirmation in writing unless both sides agree on an electronic form of communication for their business transactions and the communication for the acceptance of such declaration expressly goes to a specific address.
Section 3 Prices – Terms and Conditions of Sale for Payments
1. The list prices of the day of delivery apply. Minimum order amount is € 100 per order.
2. If not agreed otherwise in writing, our prices are valid ex factory excluding packaging and including VAT at the respective valid amount. The cost of packaging will be issued in a separate invoice.
3. Discounts require a separate written agreement.
4. Our invoices are payable 30 days after date of issue and are due without any deductions. In the event of delayed payment, we are entitled as of the 31st day, to demand without warning interests on due interests and with the issuance of a warning we shall demand default interests at 8% of the respective German federal bank rate per annum. We retain the rights to lodge higher claims.
5. We retain the rights to make appropriate price changes due to modifications in salaries, material and distribution costs of supplies 3 months after the conclusion of contract.
§ Section 4 Set-off and Retention Rights
The buyer is entitled to set-off rights if his counterclaims are legally established, indisputable and recognized by us. The buyer may only exercise a retention right if the counterclaim is affected by the same contractual relationship.
§ Section 5 Time of Delivery
1. We shall state the approximate date of delivery and this is understood as the time of deliver ex factory. The commencement of the delivery time depends on the clarification of all technical issues as well as the timely and proper performance of the duties of the buyer. We reserve the right of defense of non-performance of contract.
2. Should the buyer default in the acceptance of delivery or culpably infringe other duties of co-operation, we have the right to demand for compensation for damage incurred, including possible additional costs. We reserve the rights for further claims. In the presence of preceding conditions, the risk of accidental destruction or accidental degradation of the purchased goods is transferred to the buyer during the period, in which the buyer defaults in acceptance or payment.
3. If we delay in our performance of the contract due to plausible reasons, our damage liability shall only be limited to gross negligence and intention.
4. The buyer is only entitled to damage claims due to non-performance at the amount of the foreseeable damage if the default on intention or gross negligence is affected.
§ Section 6 Transfer of Risks – Packaging Costs according to Terms and Conditions of Sale of TrigasFI GmbH
1. If the confirmation of contract does not state otherwise, delivery ex factory is agreed upon.
2. If the goods are delivered to the buyer upon the buyer’s wish, the risk of accidental destruction or deterioration is transferred to the buyer with the shipment of the goods to the buyer. The transfer of risks commences as soon as the goods leave the works/factory at the latest. This applies notwithstanding whether the goods were shipped from the place of performance or who bears the transport costs.
3. We shall issue an additional invoice of any required packaging.
4. The buyer shall commission a carrier. If we are to commission a carrier, we shall only do so in the name of thebuyer.
5. The buyer is under obligation to dispose of the packaging at his own cost. We shall not take back packaging materials.
§ Section 7 Warranty and Notification of Defects according to Terms and Conditions of Sale of TrigasFI GmbH
1. Warranty rights of the buyer require that he properly fulfills his inspection and notice of defects duties according to section 377 of the German commercial code.
2. Claims to damage expire after 12 months following the delivery of the goods to the buyer. Used goods are sold with the exclusion of all warranty. Existing provisions do not apply if the law stringently stipulates long schedules according to section 438 paragraph 1 no. 2 of the German Civil Code (construction and construction materials), section 479 paragraph 1 of the German Civil Code (right of recourse) and section 634a paragraph 1 of the German Civil Code (construction defects). Our approval is required before goods can be returned.
3. If in spite of all care the supplied goods have defects which already occurred during the period of risk transfer, we shall, under reservation of timely notification of defect, by our choice correct the goods or deliver a replacement. We shall always be granted the chance to make a supplementary delivery within an appropriate period of time. Claims to recourse remain unaffected by preceding agreements without any restrictions.
4. If the supplementary delivery fails, the buyer may withdraw from the contract without prejudice of any damage claims or reduce payment.
5. Claims to damage do not apply if the discrepancy from the agreed composition is insubstantial. In the event of insubstantial discrepancy from the usability or natural wear and tear as well as damage, which occur after the transfer of risk due to incorrect or negligent handling, excessive use, unsuitable production facilities, wrong construction work, and unsuitable building foundation or due to special external influences not assumed in the contract. If the buyer or a third-party performs inappropriate repair works or alterations, damage claims to this effect or ensuing consequences shall not apply.
6. The buyer’s claims to necessary expenses for subsequent fullfilment especially costs of transportation, travelling, labour, material are excluded, if the expenses increase because the goods delivered by us are latertransferred to another location of the customer unless its designated usage requires this transfer.
§ Section 8 General Liability Limitations
1. If not stated otherwise in these provisions, we are liable for damages on the grounds of a breach of contract or violations of our out-of-contract duties or in the event of contractual initiation only in a case of intention or gross negligence of or legal representative or performance agents as well as in the event of culpable violation of essential contractual duties. In the event of culpable violation of essential contractual duties – except in the case of intention or gross negligence of our contractual representative or performance agents – we shall only assume liability for foreseeable damage typical to this contractual agreement.
2. The preceding liability limitations do not apply in the event of the violation of life, limb and health.
§ Section 9 Reservation of Ownership according to Terms and Conditions of Sale of TrigasFI GmbH
1. We reserve the right of ownership to the supplied goods until the full payment of all claims in the delivery contract. This also applies to all future deliveries even if we do not expressly refer to it. If we agree on a check procedure for the payment of the purchase price, the reservation shall remain until the check has been cashed and does not become invalidated until we have received the letter of credit.
2. If the buyer’s behavior violates the contract, especially due to default payment, we have the right to withdraw from the sale items. Our repossession of the sale items does not constitute withdrawal from the contract unless this is expressly declared in writing. Seizure by us is subject to withdrawal from the contract. We are entitled to utilize the sale items after recovery. The proceeds from utilization are to be credited to the obligations of the buyer – minus appropriate utilization costs.
3. The buyer is under obligation to handle the sale items with care, he is particularly under obligation to insure them sufficiently at their original value against theft, fire or water damage at his own cost. If servicing and inspection become necessary, the buyer has to do this punctually at his own expense.
4. If the ownership has not been fully transferred to the buyer, the buyer must immediately inform us in writing if the delivered goods are subject to seizure or other interference by a third party. If the third-party is unable to pay us compensation for court or out-of-court settlements of claims according to section 771 of the German civil procedure, the buyer shall be liable for outage we may suffer. The buyer thereby transfers the damage claims companies he is entitled to from insurance on the grounds of the mentioned above or other replacement claims to the seller at the amount of the buyer’s claims.
5. The buyer has the right to resell the goods to be purchased according to normal business processes. The buyer shall transfer to us claims to the goods to be purchased beginning from now at the amount of the total invoice price (including VAT) agreed with us. This transfer applies notwithstanding whether the sale items were sold without or after processing. Even after the transfer, the buyer remains authorized to collect the claims. Our authority to recover claims by ourselves remains unaffected. We undertake not to collect the debt however as long as the customer fulfils his financial obligations from the received proceeds, does not come into default of payment and does not apply for insolvency or suspends payment. Should this however be the case, we are entitled to demand that the customer informs us of all relinquished demands and their parties liable, gives a complete statement of all information necessary for collection, makes all appropriate documents available to us and informs the parties liable/third parties of the transfer.
6. The processing or reconstruction of the sale times by the buyer shall always be performed in our name and on our behalf. In this case, the contingent right of the buyer to the reconstructed sale item remains. If the sale item is processed with other items which do not belong to us, we shall acquire co-ownership of the new item proportional to the objective value of the sale item compared to the processed items at the time of processing. The same applies in case of mixture. If the mixture occurs in such a way that the buyer’s item is regarded as the main item, the agreement applies that the buyer transfers co-ownership to us and that he preserves whole or part ownership resulting thereof for us. To secure the claims of the supplier against the buyer, the buyer shall transfer to us, his claims against a third party resulting from the mixture of the goods to be purchased with landed property; we assume this transfer as of now.
7. The buyer is under obligation, to inform us immediately of the remaining ownership of the goods to be purchased as soon as he suspends payment and immediately after the suspension of payment becomes known. Also if the goods have been processed, the buyer shall send us the composition of the claims from a liable third-party in addition to the copy of the invoice.
8. We undertake to release our entitled securities should the customer so wish in so far as the recoverable value of our securities exceeds 20% of the demands to be secured.
§ Section 10 Court of Jurisdiction – Place of Performance
1. Our business headquarters Neufahrn serves as the place of jurisdiction. This also applies to draft and check claims. We are however entitled to press charges against the buyer at his residential court.
2. If the confirmation of contract does not state otherwise, our business location is our place of performance.
3. The German law is the applicable law to all legal issues. The United Nations Convention on Contracts for the International Sale of Goods – CISG does not apply.
§ Section 11 Severability Clause
If one or more provisions become partly or wholly invalidated, the validity of the other provisions and the
concluded contract shall remain unaffected