General Terms and Conditions (GTC) of TEWE Elektronic GmbH & Co. KG
- VALIDITY, OFFER AND COMPLETION
- The following Terms and Conditions apply to all our current and future business relationships. Conflicting Terms and Conditions of our business partners are only valid if TEWE agrees to them formally in writing.
- Our offers are subject to confirmation. Contracts and other agreements are binding only upon our written confirmation or calculation.
- Our published brochures, drawings, advertising material, etc., and therein data mentioned about e.g. weight, quality, size, texture and services shall only be binding if expressly designated as binding. Cost estimates, drawings and other documents all remain our property and are subject to our copyright. They may not be made available to third parties.
- Verbal agreements must be done in writing. Issued orders by telex or by telegram TEWE only accepts on the customer's risk.
Unless otherwise agreed, our prices are net cash ex works plus packaging, insurance, installation, freight, customs duties and value added tax at the statutory rate.
- DELIVERY AND TIME OF PERFORMANCE
- Delivery times and dates are only approximate, unless TEWE has expressly given a written promise as binding. Delivery periods shall commence upon receipt of our order confirmation, but not before clarification of all execution details and the provision of any necessary certificates by the customer. For sales ex factory, delivery times and dates are met when the goods leave the factory within the delivery period or to the date of delivery; further they shall be considered as met upon notification of readiness for shipment, despite if the goods cannot be dispatched on time without any fault. Agreed delivery periods shall be extended by the period by which the customer is in delay with his obligations to us, plus a reasonable start-up time.
- If TEWE has assured to observe an appointment or deadline and if TEWE then default, the buyer must allow us in writing an appropriate extension period. When this period expires, he may withdraw from the quantities and services not supplied / provided till expiry of the extension period. If TEWE causes no gross negligence with regard to the failure or delay in delivery/performance, claims for damages are limited to the invoice value of the delivery/service.
- Events of force majeure entitle us, even if they occur at our suppliers or their subcontractors, to postpone delivery or performance by the duration of the hindrance plus a reasonable start-up period, or to withdraw completely or partially from the contract because of the unfulfilled part. Force majeure includes strikes, lockouts, mobilization, war, blockades and import bans, traffic disturbances and other circumstances which can not be influenced by us, and what makes it unreasonably difficult or even impossible for us to deliver. The client may demand a statement from us, whether TEWE withdraws or deliver within a reasonable time. If TEWE does not give a statement, the client can withdraw.
- DELIVERY AND TRANSFER OF PERILS
- Without making a special agreement, dispatch and transport are to our choice.
- The delivery "free place of truck unloading" presupposes that the place is to reach by a truck-access road. The recipient is responsible for prompt and proper unloading. Waiting time will be charged.
- By handing goods over to a forwarder or carrier, the risk shall pass to the buyer with leaving our factory - even with agreement of free delivery.
- Delivered goods, even if they have minor defects, are to be accepted by the purchaser – the rights under section 8 notwithstanding.
- Partial shipments are allowed.
- ASSEMBLIES – INSTALLATION WORK
- Installation work will only be carried out by us, if they are agreed separately by special contract.
- In corresponding thereto cases, the calculation is based on the predetermined hourly rates, triggering rates and kilometer rates, including the hours for arrival and departure time and mileage for one way trip will be added.
- If for mounting a lump sum agreed and delayed the installation or commissioning without our fault, then all costs associated waiting times, travel and other expenses of the installation personnel shall be borne by the client. If after completion of the installation work can be carried out by the customer for reasons beyond the commissioning and handover of the plant immediately, the subsequent additional fitter’s assignment must be borne by the customer.
- The assembly work ordered by us excludes the following demands: Earthworks, mortise-, masonry- , roofer- , painter-, electronic- and water installation works.
- The customer certifies the working performance and time of the assembly personnel daily on a given form after the work is done. Disagreements are to be noted. Hours of travel and waiting hours count as working hours. The absence of a signature does not exclude charging the works according to the information of our assembly and service personnel.
- The assistants and aids necessary for all assembly works as lifting-, scaffolding-, and transport equipment have to be provided for our assembly operators free of charge. Assistants are to be initiated in accordance with our assembly operator’s instructions. In special circumstances the costumer is charged for the use of an ambulance, unless agreed otherwise.
- For the storage of the system parts, the material and the tools as well as the residence of our assembly operator sufficiently large, dry and lockable rooms need to be provided. The danger of lost items on the construction area is to be borne by the purchaser.
- The purchaser or end-use costumer is obliged to inform about the structural circumstances before the assembly operators leave the construction area. We do not substitute any damages in retrospect.
- Modifications, if demanded by public authorities, are to be paid by the costumer economically and materially and are charged by us separately.
- The ground has to be drivable by a erection scaffold, the construction area must be accessible by vehicle; when further costs develop by variances they are charged separately.
- Our adjustment and programming of the control computers does not excuse the costumer from is responsibility to control the equipment on its proper functioning or respectively to program it appropriately!
- Unless not agreed otherwise explicitly, the settlement of accounts of PVC material, incidentals and installation material as well as bulk stock etc. occurs by measurement.
- CONDITIONS OF PAYMENT/BILL
a) Unless otherwise agreed, all payments shall be made in cash without any discount within 30 days after the delivery or the execution of the performance irrespective of the bill’s arrival. Payments are to be made solely to us to be deemed fulfilled not to our agents.
b) Any delay of payments or settling of accounts due to eventual disputed, not legally supported counter claims from the customer are not valid.
- RESERVATION OF PROPRIETARY RIGHTS
- All delivered goods remain our property until all accounts have been settled (reserved goods) if payments have been made for especially designated claims. For outstanding accounts the retention of title acts as a guarantee for the balancing claim.
- The handling and processing of the reserved goods shall be processed on our behalf as manufacturer in terms of the §950 Code of Civil Law, without obligating ourselves. When processing with other goods that don’t belong to us but the customer TEWE is entitled to the co-ownership of the processed good in relation from the invoice value of our processed reserved goods to the sum of the invoice value of all goods used for the production. If our goods are mixed with or linked to other objects and thus our ownership of the reserved goods expire (§§ 947, 948 Code of Civil Law), TEWE agrees now that the costumer’s ownership of the mixed inventory or the uniform item is devolved to us to the extent of the (invoice) value and that the costumer stores these goods for us free of charge. The goods developed out of processing, connecting or mixing are reserved goods in terms of these conditions.
- The costumer may only sell or process the reserved goods in the normal course of business to normal terms and conditions of business as long as they are not in default. The client is only authorized to resell the goods if the claims from the resale including the ancillary rights are assigned to us as stated in the following. The costumer shall not be entitled to make other dispositions. The resale is equated with the installation in plot of land or in edifices or with the use of the conditional goods for the performance of other service contracts or contracts for work and materials by the purchasing.
- The costumer’s claims concerning the resale of the reserved property are now beyond all supplementary agreements – irrelevant whether they are sold to one or several costumers – assigned to us in full. If the reserved goods are sold with other goods that are not our property the claim is only assigned in the amount of our invoice value. If the reserved goods are sold by the costumer after combining, mixing or processing the goods with other goods that do not belong to us, the cession is only proceeded to the amount of our co-ownership of the sold item or the sold stock. The purchaser is entitled to collect the accounts receivable assigned to us as long as he is not in default, in this case TEWE is entitled:
aa) to revoke the authorization to sell or machining / processing or installation of the reserved goods and to collect the receivables assigned to us.
bb) to demand the return of the reserved goods without the client having a right of retention and without withdrawing us from the contract thereby.
cc) to notify third-party debtors about the cession.
- The client is obliged to provide us with the information required to enable us to enforce our rights and to hand over documents relevant for the enforcement of our claims.
- If the value of all collaterals held by us is exceeding our receivables by more than 20% not only temporarily, TEWE will return collaterals of our choice to cover the appropriate amount on request.
- Within a period of limitation of one year from the commencement of the statutory period of limitation any defects are remedied by us. This occurs at the choice of the customer by either rectification or replacement free of charge. In the event of a replacement delivery the purchaser shall be obligated to return the defective goods.
- If the deficiency cannot be rectified within a reasonable amount of time or if the improvement or substitute delivery is to be regarded as failed for other reasons the customer may choose to claim a reduction of the remuneration or withdraw from the contract. Rectification shall not be considered to have failed until TEWE has been given sufficient opportunity for rectification or replacement delivery without the desired success being achieved, if rectification or replacement delivery is no longer possible, in case TEWE denies or unreasonably delay the rectification or replacement, in case of reasonable doubts regarding the prospects of success or in case of unacceptability arising out of other reasons.
- The costumer needs to give us the opportunity to check the alleged defect. Upon our demand the customer shall be obliged to provide samples of the material to which objections have been raised.
- The costumer is obligated to immediately inspect the supplied goods on defects which are conspicuous to the average customer. Obvious defects include the lack of manuals and easily visible damages to the goods. This also includes cases in which a different item is delivered or in which the delivered quantity is too small. Such obvious defects are to be notified to the supplier in writing within four weeks after delivery.
- Effects that become obvious at a later point of time are to be claimed by the customer within 4 weeks after recognition.
- If the examination duty and the obligation to give claims notification are not obeyed, the goods are considered as accepted as they are. The statutory rules of the §§ 377, 378 Code of Mercantile Law remain unaffected.
- If transport damage occurs on delivery by freight train, vessel shipment and on delivery by freight forwarder, the goods delivered are to be placed at the disposal of the freight forwarder or of the dispatch department for acquisition of defects. Breakages and shortages must be noted on the waybill / delivery note.
We rule out accepting liability for breaches of our obligations due to slight negligence as far as these do not concern any substantial contractual obligations, damages due to injury to life, body or health or claims under the Product Liability Act are affected. The same applies to any breaches of duty by our vicarious agents.
- PLACE OF FULFILMENT; JURISDICTION AND APPLICABLE LAW
For all conflicts arising in connection with the contractual relationship a lawsuit is to be filed at a court that is responsible for the headquarter of the company TEWE Elektronic GmbH & Co. KG. TEWE is also entitled to raise action to the head office of the costumer. The provisions of the Hague Convention are excluded. The place of performance for our shipments / deliveries of merchandise is our company in Vreden.
- INVALIDITY OF CLAUSES
If any of the mentioned individual clauses should be or will be invalid, rules that come closest to the contract’s economical purpose should take their place while reasonably maintaining the mutual interests of the parties.