The following conditions apply to all our offers, deliveries and services. We are not obliged to respond to customer special requests and changes to our terms and conditions unless these have been expressly acknowledged by us in writing.
These terms and conditions also apply to pending and future transactions, even without explicit reference, provided only that our conditions have been included in a previous contract.
Condition 2 does not apply to non-merchants.
2. Conclusion of contract / ancillary agreements
Our offers are non-binding, unless they have been explicitly designated as a fixed offer.
Ancillary agreements must be made in writing.
The delivery of goods takes place from our warehouse. If carriage-paid delivery has been agreed, at our discretion, shipping within Germany will be to the place of destination or to the nearest rail freight station.
The date of dispatch will be treated as the delivery date. We can also deliver the goods up to 2 weeks before the agreed date.
If we require the purchaser to produce documentation, the delivery date may be postponed until the necessary documents have been made available to us.
If the customer does not accept delivery of the goods after confirmation of the order, or does not issue the necessary shipping instructions in advance, we can claim damages instead of performance or withdraw from the contract after setting a reasonable period of grace. And in addition, we are entitled to compensation for local storage costs.
We will arrange goods-in-transit insurance only after a written request from the customer, and at his expense.
According to § 39 KVO or CMR Article 30, the recipient must immediately notify the carrier of any damage which was externally identifiable upon acceptance of the goods, or in the event of damage not immediately apparent, notify us and make a claim in respect of the damage within one week of acceptance of the goods.
4. Partial deliveries / excess- and short deliveries
We can make partial deliveries and deviate from the agreed quantities.
5. Blanket purchase orders
Contracts with agreed partial deliveries (delivery schedules) oblige the customer to accept partial deliveries.
6. Transfer of risk
Where there is no consumer purchase of goods involved, the risk of accidental loss and incidental deterioration of any delivery items shall pass to the purchaser at the time at which the goods are handed over by us to the carrier.
In the case of weight or quantity differences which are neither our responsibility nor that of the purchaser, the departure weight or filling quantity determined in our factory shall be decisive
7. Disruption of supplies / non-performance
Correct and timely delivery by our suppliers remains reserved.
Operational disruptions for which we are not responsible, in particular measures involving industrial action, unless these are of a temporary nature, force majeure involving us or our suppliers or similar circumstances, such as provisions decreed by law or official authorities, transport delays or hindrances, disruption of the delivery of and/or the supply of energy, intermediate and end products entitle us to withdraw from the contract in whole or in part, without being liable to pay compensation.
In respect of all the circumstances mentioned in Section 7, Paragraph 1, the purchaser is entitled to rescind after setting a reasonable period of grace for the parts of the contract not yet fulfilled.
Section 7, Paragraph 1 does not apply to non-merchants.
Where there is no consumer purchase of goods involved, prices are subject to change without notice, and unless otherwise agreed, exclude VAT, transport, packaging, customs duties and other charges.
9. Terms of payment
The purchase price is payable within 30 days after the receipt of the invoice net cash.
Invoices with other specified payment terms are valid only in respect of the particular services described on the invoice.
If this payment deadline is exceeded, we are entitled, without prejudice to further claims, to charge interest at the rate of 5% above the actual bank rate of the European Central Bank, as well as reminder costs of € 5.00 per reminder, or € 15.00 for foreign transactions.
Bills of exchange will not be accepted.
If the customer is unable to meet his obligations then, subject to other rights, we are entitled to refuse the service until payment has been effected or some form of security has been provided. We are entitled to withdraw from the contract if the customer neither pays what is due nor provides any form of guarantee within a reasonable period of grace.
10. Packaging services
Our packaging service wraps packaged goods in shrink-wrap on behalf of the customer, and we give 12 months’ warranty on any undamaged shrink wrap. The maximum service life of shrink film as protection against UV radiation (solar radiation) is limited to 24 months, and this corresponding information about the UV properties of shrink film is listed in our offers, thus limiting its maximum service life. The warranty expires if the customer modifies the shrink wrap, improperly opens or closes the ventilation slits, or does not close them at all. The warranty expires as soon as the customer cuts open the shrink wrap, or punctures or causes other damage to the shrink wrap. The warranty on any shrink wrap packaging will be void if damage in transit occurs. Our warranty will not apply in exceptional circumstances, such as damage to shrink wrap packaging by birds, vandalism, opening by anyone other than TMS service personnel, floods, and/or extreme weather conditions such as heavy rainfall, extreme snow and hail, as well as storms / hurricanes over 80km / h. The purchaser should check the packaging at regular intervals to ensure the shrink-wrap packaging is in proper condition. Unless there is a corresponding service contract which states that this service will be performed by the company TMS Automotive GmbH.
11. Retention of title
Subject to the restriction of this right under section 7, we reserve the right to retain the title to the supplied item until the complete fulfilment of all claims against the customer arising from the entire business relationship.
In the case of processing of the goods delivered or their combination with third party material, we acquire co-ownership of the new item produced in proportion to the value of the goods subject to the reservation of title to the value of the new item created through this processing. The value of the goods subject to retention of title as well as the value of the processing is determined by the time of processing. In undertaking any processing work the customer shall be active on our behalf without acquiring any claims against us as a result of such processing. The customer is obliged to carefully keep the reserved goods safe on our behalf. If we do not acquire co-ownership in the case of a combination of several goods, the customer must transfer to us the appropriate co-ownership share determined in accordance with Section 10, Paragraph 2, sentences 1 and 2.
In the event of resale of the new product by the customer, the purchase price claim for the customer arising from the resale occurs pro rata in place of the product in accordance with Section 10, Paragraph 2, sentences 1 and 2. The customer assigns this pro rata purchase price claim to us. We accept the assignment.
If the purchased goods are resold by the customer unprocessed, the customer hereby assigns to us the claims due to him from such divestments with all ancillary rights up to the amount of his claim. We hereby accept this assignment.
The customer is entitled to process the reserved goods in the course of his ordinary business operations and to resell them. He may collect assigned claims in his own name.
If the realizable value of the securities exceeds our claims by more than 10%, we are obliged to release the surplus of the securities to which we are entitled at the request of the customer.
The customer has to inform us immediately in writing, if the goods subject to retention of title or goods subject to our co-ownership as well as claims transferred by advance assignment are executed. The customer must immediately notify the enforcement agent and the enforcement creditor that the goods are still subject to the reservation of title or in our co-ownership or that the claim has been assigned to us.
If the purchaser is not a merchant, Section 10 clause 1 applies with the proviso that the retention of title is limited to the delivery item.
The customer may only offset against our claim for payment with undisputed or legally established counterclaims.
The customer must examine the goods immediately after delivery for their suitability. In the case of a third-party business, our contractual partner must inspect the goods for their suitability immediately after delivery or have them examined.
We deliver according to our product description and specification; these are the subject of a quality agreement.
Complaints about obvious defects in the type, quantity and quality of the goods must be made in writing within a period of two weeks from receipt of the goods. Hidden defects must be reported in writing within a period of limitation of two weeks after acquiring the knowledge, and at the latest within one year after receipt of the goods, or within two years in the case of non-merchants.
Unavoidable deviations in quality, purity, colour and other properties are not considered to be defects. With regard to material thicknesses and dimensional deviations as with all other contractual relationships not mentioned here, the current norms and practices in the FRG for the respective industry sector shall apply. And for imported materials, the corresponding conditions of the respective manufacturer country shall apply.
If it is not a consumer goods purchase, the customer can only demand replacement delivery in the case of a justified complaint about defects in processed goods, or goods that have not yet been processed. If the substitute delivery fails, the customer is entitled to reduce or withdraw from the contract.
The buyer is obliged to check the suitability of the goods for the intended use. Trial samples can always be provided. For newly manufactured goods, the warranty period from delivery of the goods is one year for entrepreneurs, and two years for consumers. For used goods, provided the defect has been properly reported in a timely manner, the limitation period is one year from delivery of the goods.
The warranty lapses if the customer installs the shrink wrap incorrectly, uses insufficient padding, loose cord strapping (or none at all), heats the shrink wrap too much, causes holes or other damage, or if repairs to cracks or holes are not carried out in a proper manner.
In the case of slightly negligent breaches of duty, our liability is limited to average damages which are foreseeable, contractually typical and directly related to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We are not liable to companies for slightly negligent violation of non-essential contractual obligations.
The above limitations of liability do not affect product liability claims made by the customer. Furthermore, the liability limitations do not apply if we are responsible for personal injury, damage to health, or death of a customer.
Customer claims for damages due to a defect lapse after one year from the delivery of the goods. This does not apply if we are guilty of malice or gross negligence or if we are responsible for personal injury, damage to health, or death of a customer.
15. Applicable law, place of jurisdiction
The contract is subject to the law of the Federal Republic of Germany. The Uniform Law on the International Sale of Goods does not apply.
The place of jurisdiction is the court responsible for our registered office. This does not apply if the customer is not a registered trader, unless he has no general place of jurisdiction in Germany.
Should one of the above provisions be wholly or partially invalid, this shall not affect the validity of the remaining provisions.
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