General Terms and Conditions of Sale and Supply of TNT Maschinenbau GmbH (TNT) for use in dealings with entrepreneurs, legal entities under public law and public-law special funds
I. General provisions
These Terms apply to all business relationships between TNT and its customers and to all offers and goods and services provided by TNT.
These Terms apply on an exclusive basis; terms and conditions of business of the customer or third parties that conflict herewith or deviate from or supplement these Terms do not apply and shall become an element of the contract only if and insofar as TNT has consented in text form to the application thereof. This applies even if TNT provides goods and services without reservations while knowing of terms and conditions of business of the customer that conflict with or deviate from these Terms or TNT refers to letters from the customer containing or referring to terms and conditions of business of the customer or third parties.
These Terms also apply, in the then-applicable version thereof, to future transactions between TNT and the customer and to future offers, goods, and services of TNT, even if these Terms are not agreed again separately or referred to. TNT shall notify the customer without delay of any changes in these Terms.
Individual agreements with the buyer entered into in the individual case (including side agreements, addenda, and amendments) shall take precedence over these Terms in all cases. Unless proven otherwise, the content of such agreements is governed by a written contract or our written confirmation, as the case may be.
Legally relevant declarations and notices issued or to be issued by the customer to TNT after the contract is entered into are not valid unless set out in written form.
II. Entry into contract
Offers made by TNT are non-binding and subject to change.
The customer’s orders are binding, and the customer is bound by its offer for a period of 14 calendar days from receipt of the order by TNT. During this time, TNT can accept the customer’s order by way of an order confirmation in text form or by delivering the goods to the customer.
Product descriptions, drawings, and depictions of the goods, technical data, and other information provided by TNT regarding the goods or service are approximate values only and are roughly operative, provided that the usability of the goods or service for the purpose of the contract does not require an exact match. This information and these depictions are deemed to constitute descriptions of the goods or service, but not warranted quality characteristics. Provided that this does not adversely affect the contractually provided usability of the goods or service, deviations customary within the trade are permissible.
III. Prices; payment
Our prices apply ex works plus value-added tax; in the case of deliveries, they apply exclusive of packaging, transportation, freight, and assembly/installation. Any customs duties and/or other public charges or levies that may apply shall be borne by the customer.
If TNT delivers a machine to the customer, the price agreed for this purpose must be paid by the customer as follows: the first third after receipt of the order confirmation, the second third as soon as TNT has notified the customer that the main elements are ready to ship, and the rest within two weeks after the passage of risk. In the case of all other deliveries by TNT, the agreed purchase price is due and payable 14 days after invoicing and delivery. If, in the case of these other deliveries, the delivery value exceeds the amount of €15,000.00, TNT is entitled to demand a down payment for this in the amount of one-third of the agreed purchase price. This down payment is then due and payable two weeks after order confirmation.
The customer is deemed to be in default when the foregoing payment time limit elapses. The sum due in each case pursuant to the provision above shall bear interest pursuant to the then-applicable statutory provisions once default occurs. Nothing herein shall affect the right to assert claims concerning further damage and/or losses due to default or default interest within the meaning of Sec. 353 of the German Commercial Code (HGB).
The buyer has rights of retention and setoff only to the extent that the buyer’s counterclaims are undisputed or have been established with final, binding legal force.
TNT is permitted to render outstanding deliveries to the customer dependent on the customer paying in advance or furnishing security if, after the contract is entered into, circumstances that cause TNT’s claim to payment of the purchase price to be jeopardized due to lack of ability to perform on the customer’s side come to light. TNT has the statutory rights of rescission without limitation in this case; however, TNT is entitled, within the scope of contracts concerning one-off products, to rescind the contract immediately and without setting a time limit.
Where TNT states time limits or dates for delivery, these constitute non-binding approximations unless the dates or time limits in question are expressly designated as binding or are agreed between the Parties to be binding. If the Parties have agreed that the goods will be shipped to the customer, the time determining whether delivery time limits or delivery dates have been observed is the time at which the goods are handed over to the shipper, freight forwarder, or other third party commissioned to carry out the transportation. In all other cases, the time determining whether delivery time limits or delivery dates have been observed is the time at which TNT has notified the customer that the goods are ready to ship; where a formal acceptance procedure is required, this is the time of notice of readiness for formal acceptance.
All delivery dates and delivery time limits apply subject to proper and timely delivery to TNT itself, provided that TNT is not responsible for such deliveries being delayed or incorrect. TNT shall notify the customer without delay if there is a threat of delays in the delivery dates or delivery time limits due to improper or late delivery to TNT itself.
TNT is not liable for delays in delivery or for impossibility of delivery as a result of force majeure or other events that are not foreseeable for TNT at the time when the contract is entered into and for which TNT is not responsible. If such events or force majeure render it impossible or, taking the value of the goods into account, unreasonably difficult for TNT to deliver, TNT is entitled to rescind the contract. If TNT is merely temporarily prevented from delivering due to such events or force majeure, the delivery dates or delivery times limits shall be postponed by the period during which the impediment to performance applies, plus a run-up period of one week. In this case, the customer is entitled to rescind the contract if the late delivery is not reasonable for it and it notifies TNT thereof in text form without delay after TNT has informed the customer of the impediment to performance. Nothing herein shall affect the customer’s right to rescind the contract subject to the statutory prerequisites in the event that performance is impossible.
TNT is entitled to make partial deliveries provided that the customer does not sustain any significant additional expenses or costs as a result of a partial delivery where TNT does not assume these costs and provided that the delivery of the remainder of the goods is ensured and a partial delivery is usable for the customer, taking into account the purpose of the contract.
If TNT’s delivery is delayed for reasons for which the customer is responsible (for example if the customer omits a cooperative action owed by it or performs such action late) or if the customer falls into default of acceptance, TNT is entitled to demand compensation from the customer for expenses, damage, and/or losses incurred by TNT as a result thereof; TNT is therefore entitled to demand that the customer pay lump-sum compensation in the amount of 0.25% of the value of the goods per calendar day, starting with the day after the agreed delivery date or communication of readiness to ship or readiness for formal acceptance by TNT, where no delivery date is agreed, with the total not to exceed 5% of the value of the goods. This lump-sum compensation does not apply if the customer demonstrates that the amount of the damage and/or losses suffered by TNT is significantly lower or that TNT has not suffered any damage and/or losses at all. Nothing herein shall affect any further statutory rights of TNT or the right to demonstrate that the amount of damage and/or losses suffered is higher; at any rate, the lump-sum compensation must be counted against any further claims on TNT’s part.
Where a formal acceptance procedure is required, it must take place without delay as of the acceptance date. If no such date has been agreed or an agreed acceptance date cannot be observed, formal acceptance must take place without delay after notification of readiness for formal acceptance. The customer is not entitled to refuse acceptance if there is a minor defect. The goods are deemed to have been accepted at the latest if and when
- the delivery (including assembly and/or installation, where owed) has been concluded;
- TNT notifies the customer that the delivery has been concluded, requests that the customer accept it, and has pointed out the notional acceptance pursuant to this provision;
- a period of ten working days or, where the customer has begun using the goods (for example by commissioning them), five working days has elapsed since the conclusion of the delivery; and
- the customer has not refused acceptance during this period due to a major defect in the goods.
The risk of accidental loss and/or deterioration of the goods passes to the customer when the goods are handed over; if shipping of the goods has been agreed, the risk of accidental loss and/or deterioration of the goods passes when the goods are handed over to the shipper, freight forwarder, or other person or entity designated to carry out the shipping. This also applies if partial deliveries take place or TNT also owes further services (such as commissioning or installation). Where a formal acceptance procedure is required, this procedure is the operative factor in determining the passage of risk. If the shipping or handover of the goods or formal acceptance is or are delayed due to circumstances whose root causes lie with the customer, the risk passes to the customer after TNT has notified the customer that the goods are ready to ship or are ready for handover or formal acceptance.
V. Retention of title
The goods remain the property of TNT until such time as all claims to which TNT is entitled toward the customer under the contract underlying the delivery have been fulfilled in their entirety.
The customer is obligated to treat the goods delivered to it subject to retention of title with care and to insure them at replacement value at its own expense against fire and water damage and against theft.
The customer is not permitted to pledge the goods supplied subject to retention of title to third parties or to transfer title thereto by way of security until TNT’s claims against the customer that are secured by the retention of title have been satisfied. If the goods delivered to the customer subject to retention of title are attached or distrained by third parties, or if third parties otherwise have recourse to the goods supplied subject to retention of title, the customer is obligated to notify the third party that TNT is the owner thereof and to notify TNT thereof in text form without delay. The customer must reimburse TNT for necessary costs incurred by TNT within the scope of asserting its rights of ownership against the third party in and out of court unless these costs are reimbursed by the third party.
If the customer does not remit a payment that is due or does not do so in a timely fashion, TNT is entitled to prohibit the use of the goods supplied subject to retention of title or to take back the goods after TNT has set a reasonable period for the customer to perform and such period has elapsed fruitlessly. If TNT takes back the goods delivered to the customer subject to retention of title, this constitutes rescission of the contract; this also applies if TNT attaches or distrains the goods supplied subject to retention of title. In this case, the customer shall bear all costs arising in conjunction with the reversal and may be liable for damages.
In this case, the customer shall bear all of the transportation costs incurred in order to take back the goods.
The customer is permitted to use, resell, and/or process the goods supplied subject to retention of title in the ordinary course of business. The following supplementary provisions apply on this point:
- The customer hereby assigns to TNT the claims arising from the resale of the goods supplied subject to retention of title and those claims of the customer in relation to the goods supplied subject to retention of title to which the customer is, or later will be, entitled for other reasons against its own customers or other third parties (such as claims to insurance benefits and/or claims arising from tortious acts). TNT accepts such assignment.
- The customer remains authorized and empowered to collect on the claims mentioned above, and TNT undertakes not to collect on these claims as long as the customer is complying with its contractual obligations toward TNT and, in particular, does not fall into default of payment, no petition for opening of insolvency proceedings concerning the customer’s assets is filed, and there are no other defects in the customer’s ability to perform that jeopardize TNT’s claim to payment of the purchase price. If such a case arises, however, the customer is obligated to notify its debtors of the assignment and to designate its debtors to TNT and provide all information necessary in order to collect on these assigned claims and turn over associated documents to TNT.
- Any processing or transformation of the goods delivered to the customer subject to retention of title is always carried out on TNT’s behalf. If the goods delivered to the customer subject to retention of title are processed with items that are not owned by TNT, TNT acquires co-ownership of the item newly created through processing in proportion to the value of the goods delivered to the customer subject to retention of title (invoiced amount, including VAT) to the other items processed at the time of processing. The new item created as a result of processing is subject to the same provisions that apply to the goods delivered to the customer subject to retention of title.
- If the goods delivered to the customer subject to retention of title are inseparably combined or mixed with items that are not owned by TNT, TNT acquires co-ownership of the item newly created through combination or mixture in proportion to the value of the goods delivered to the customer subject to retention of title (invoiced amount, including VAT) to the other items combined or mixed at the time of combination or mixing. If the combination or mixing takes place such that the item not owned by TNT should be regarded as the main item, the customer hereby assigns proportional co-ownership of the newly created item to TNT. TNT accepts this assignment.
- To the extent that acquires co-ownership or sole ownership of a newly created item, the customer keeps the item in safekeeping for TNT. At the customer’s request, TNT shall release items of security of TNT’s choice to the extent that the realizable value of the items of security exceeds TNT’s claims by more than 10%.
VI. Warranty; claims regarding defects
The warranty period is 12 months.
The customer is obligated to inspect the goods carefully without delay after delivery and to report any defects to TNT in text form without delay after they are discovered. The goods are deemed to have been approved by the customer with regard to obvious defects or defects that would have been recognizable if the goods were inspected carefully without delay if the customer does not complain of such defects to TNT in text form within seven working days after the passage of risk. With regard to other defects, the goods are deemed to have been approved by the customer if the customer does not complain of such defects to TNT in text form within seven working days after they are discovered. However, if the defect was recognizable to the customer at an earlier time upon normal use of the goods, this earlier time is the time determining when the time limit for complaints commences.
If the goods are defective, TNT can choose the nature of the cure (repair or replacement). Nothing herein shall affect the right to refuse to effect a cure pursuant to the statutory prerequisites. The cure owed by TNT does not include removing the defective item and reinstalling an item that is free of defects if TNT was not obligated to install the item originally, either.
TNT is entitled to render the cure dependent on payment of the purchase price. The customer is, however, entitled to retain a portion of the price that is appropriate in relation to the defect.
TNT shall bear the costs of the cure if the goods are defective. If a demand for remediation of defects by the customer subsequently turns out to be unjustified, TNT is permitted to demand that the customer reimburse the costs that have been incurred as a result of the unjustified demand for remediation of defects.
The customer’s warranty rights cease to apply if and insofar as the customer modifies the goods, or permits or occasions the modification thereof by third parties, without TNT’s consent and this renders it impossible or unreasonably difficult for TNT to remedy the defect. If such modifications of the goods lead to additional costs for remediation of defects, the customer must reimburse TNT for these.
If the fact that a component from another manufacturer that is used by TNT is defective causes the goods to be defective, TNT is permitted to assign to the customer TNT’s claims against the third-party manufacturer with regard to such defects; warranty claims of the customer against TNT exist in this case only if and to the extent that enforcing the claims that have been assigned to the customer against the third-party manufacturer with regard to defects in court proceedings has been unsuccessful or has no prospect of succeeding. The limitation of the customer’s warranty claims against TNT is suspended for the duration of the assertion of claims against the third-party manufacturer by the customer.
If TNT delivers a machine to the customer and TNT owes the technical commissioning of the machine at the customer’s end, the following applies in addition to the provisions of Sec. VI of these Terms: If the machine is congruent with the agreed specifications, TNT is not liable if the commissioning of the machine is delayed due to materials used by the customer or other machines that are used together with the machine delivered by TNT. It does not constitute a defect in the goods if the machine delivered by TNT cannot be operated, or cannot be operated properly, together with the materials used by the customer or other machines, if and insofar as the machine delivered by TNT is congruent with the agreed specifications.
The customer is obligated to notify TNT without delay if third parties assert claims against the customer in relation to the goods with regard to infringement of industrial property rights or copyright. If the goods infringe an industrial property right or copyright of a third party, TNT will, at its option, modify the goods or replace them such that third-party rights are no longer infringed, but the goods are still congruent with the contractually agreed quality, or procure a right of use for the customer. If TNT does not succeed in doing this within a reasonable period, both the customer and TNT are entitled to rescind the contract.
In all other respects, the customer’s warranty claims are determined according to the statutory provisions.
TNT is liable for damages – irrespective of the legal basis – only in case of intent and gross negligence. In case of ordinary negligence, TNT is liable only
- for damage and/or losses arising from loss of life, bodily injury, or impairment of health;
- for damage and/or losses arising from a violation of an essential contractual obligation (an obligation whose fulfillment renders the proper implementation of the contract possible in the first place and in whose fulfillment the other party to the contract generally trusts and is permitted to trust), with TNT’s liability in this case being limited to compensation for the foreseeable and typically occurring damage and/or losses.
The foregoing limitation of liability does not apply to claims of the customer pursuant to the German Product Liability Act (ProdHaftG) or to the extent that TNT has maliciously concealed a defect or has furnished a warranty for the particular quality of the goods.
The customer has no free right of termination (particularly pursuant to Sec. 651 and 649 of the German Civil Code (BGB)). The customer is not permitted to rescind or terminate the contract due to a breach of duty on TNT’s part that does not consist in a defect unless TNT is responsible for such breach of duty.
VIII. Choice of law; place of jurisdiction
The legal relations between TNT and the customer are governed by the laws of the Federal Republic of Germany as applicable to legal relations between domestic parties to a contract. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is ruled out.
The exclusive place of jurisdiction for all disputes arising out of or in conjunction with the contractual relationship between TNT and the customer is Detmold. Nothing herein shall affect any non-waivable statutory provisions concerning exclusive places of jurisdiction.