English version for reference only. German version is legally binding. Version 01.01.2018
1. General terms and conditions
- The following general terms and conditions apply to all offers, sales, deliveries and other services of Tuchel & Sohn GmbH, Hamburg (hereinafter “Tuchel”).
- Purchasers in the sense of these terms and conditions must be entrepreneurs in the sense of § 14 BGB.
- These terms and conditions will be recognised by the Purchaser at the latest with the acceptance of the delivery and will apply for the entire duration of the commercial relationship in their respectively valid version, unless the recipient disputes them immediately.
- Deviating, conflicting or supplementary general terms and conditions of the Purchaser are only binding on Tuchel if they are expressly recognised by Tuchel
2. Conclusion of the contract
- The offers of Tuchel are always subject to change. The contract is only concluded on confirmation by Tuchel. If an order confirmation is not sent, the contract is concluded by the delivery with the content of the invoice.
- Samples are “type samples”, which represent the approximate character or type of goods in broad outline.
- Verbal collateral agreements or subsequent amendments to contracts and agreements, representations and promises of any kind, including the statements of employees of Tuchel, are only legally binding if they are confirmed in writing. The same applies if agreements are concluded with travelling salesmen and representatives.
- Tuchel prices are net prices. They are subject to the respectively valid sales tax. Pricing is in EURO.
4. Payment conditions/payment
- Payments must be made within the agreed deadline without any deductions net in cash. If a cash discount is agreed, the discount may only be made if the amount is received by Tuchel within the agreed deadline.
- If there is no agreed period, invoices will be payable within 14 days from the invoice date without discount. This does not apply if the invoice is not sent to the Purchaser within 3 working days after the invoice date. In this case, default occurs only after a period of 7 working days after receipt of the invoice. If an invoice is not sent to the Purchaser at all, default occurs within 30 days after receipt of the goods.
- For any delay of payment interest at 8 percentage points above the base interest rate will be payable. Tuchel reserves the right to demonstrate and claim higher default damages.
- Bill payments are allowed only by special agreement and only with the possibility of rediscount. Bills and cheques are only accepted in settlement, not in lieu of settlement. Bill charges and taxes are payable by the Purchaser. They are due for payment immediately. In the event of a cheque or bill protest, Tuchel may demand immediate payment for later maturing securities in line with the return of the cheque or bill.
- The Purchaser is not authorised to counterclaim without the consent of Tuchel, except for undisputed or legally determined counterclaims. The assertion of rights of retention which are not based on the same contractual relationship is excluded.
- If the Purchaser is in default with the payment of a due debt and Tuchel sets a reasonable grace period for settlement, Tuchel may withdraw from the contract.
5. Force majeure
- In the event of force majeure such as fire, industrial action, war, blockade, input and export bans or other unforeseen, extraordinary events, Tuchel is released from its performance obligation.
6. Delivery/transport insurance/delivery deadline
- Tuchel is entitled to make partial deliveries if the deviation is reasonable for the Purchaser to accept. Greater or lesser deliveries up to 5% of the agreed amount are still deemed to constitute performance of the contract.
- Unless otherwise agreed, the Purchaser will bear the transport risk. In these cases, the risk of accidental loss and accidental deterioration of the goods passes with the delivery of the goods to the transport agency. Transport insurance by Tuchel must be expressly agreed.
- If and to the extent that CIF is agreed as an Incoterm, the insurance to be concluded by Tuchel does not extend to war risks. The insurance to be concluded by Tuchel in this case must only cover compensation of the Purchaser due to lost profit to the extent of 5%.
- If and to the extent that CIF is agreed as an Incoterm, the goods must be received by the Purchaser, if the agreed port of destination cannot be reached as a result of force majeure, without extra costs for Tuchel in the nearest accessible port.
- Tuchel can freely determine the dispatch route and dispatch method. If delivery is carriage paid, Tuchel is entitled to select the cheapest transportation option for the cargo.
- Delivery times must be agreed in each case. The timely dispatch of the goods is sufficient for compliance with the delivery time.
7. Notice of defects
- If the Purchaser is a merchant, he is required to investigate the delivered goods immediately, at the latest within 2 working days after delivery.
- If the Purchaser is a merchant, he is required to raise obvious defects immediately with Tuchel, at the latest within 3 working days after delivery. If obvious defects are not raised by the Purchaser, the merchant is also required to raise them with Tuchel immediately, at the latest within 2 working days of their becoming known. The receipt of the complaint by Tuchel is the benchmark.
- If the Purchaser is an entrepreneur, but not a merchant, 7.1 and 7.2 apply appropriately.
- For defects of the goods Tuchel will at its discretion provide repair or supply new goods free of defect.
- If the amending performance is not forthcoming, the Purchaser is entitled to withdraw from the contract or to demand a reduction of the purchase price at its discretion. With a minor lack of conformity, in particular minor defects, however, there is no right of withdrawal for the Purchaser.
- Tuchel is liable according to the statutory regulations insofar as the Purchaser asserts compensation claims for intent or gross negligence, including intent or gross negligence of its representatives or vicarious agents. To the extent that the breach of contract is not based on premeditation, Tuchel’s liability is limited to the foreseeable damage typically occurring. The restriction of damages claims to intent or gross negligence does not apply to injury to life, body and health or a negligent breach of duty by Tuchel or a statutory representative or vicarious agent of Tuchel.
- Tuchel is liable according to the statutory provisions if it culpably infringes an essential contractual obligation. In this case, however, the liability for damages is restricted to the foreseeable, typically occurring damage.
- Liability for culpable injury to life, body or health will remain unaffected; this also applies to the mandatory liability under the Product Liability Act.
- Unless stated otherwise above, liability is excluded. This applies in particular to claims for damages due to fault in the conclusion of the contract, other breaches of duty or tortious claims for compensation for damage in accordance with § 823 BGB. To the extent that the liability of Tuchel is excluded or restricted, this applies also with regard to the personal liability of employees, personnel, representatives and vicarious agents of Tuchel.
- The warranty period is one year after delivery of the goods. This does not apply if the Purchaser has failed to inform Tuchel of the defect in good time (section 7)
9. Quality agreement
- Quality within the meaning of § 434 para 1 sentence 1 BGB is considered exclusively to be what has been agreed in writing in the contract.
- Public statements, recommendations or advertising of Tuchel and its agents also do not represent any contractual quality description of the goods.
- If and to the extent that a certain quality has been agreed in these terms and conditions or the contract of sale, this is not a guarantee
10. Reservation of proprietary rights
- Tuchel reserves the ownership of the delivered goods until all claims arising from the current and future business relations with the Purchaser are settled. In the event of payment by cheque or bill, the goods remain the property of Tuchel until their redemption.
- If third parties have acquired or acquire direct ownership of the reserved property, the Purchaser will expressly mention the retention of rights by Tuchel.
- The Purchaser is required to separately store, designate and present the goods at its own expense at the request of Tuchel.
- The Purchaser is required to insure the goods at its own expense in full against the usual risks (in particular against loss, depreciation, fire and theft risk, transport risk, water damage). The Purchaser hereby assigns all resulting current and future claims against the insurance company to Tuchel.
- Any treatment and processing of the reserved goods will be performed by the Purchaser for Tuchel, without Tuchel incurring obligations from this. If the reserved goods are processed with other items not belonging to Tuchel, Tuchel acquires co-ownership of the new item in the proportion of the value of the reserved goods to the other processed objects at the time of processing. The product resulting from the processing is regarded as a good in the sense of this provision.
- If the goods are inseparably combined with other items not belonging to Tuchel, Tuchel acquires co-ownership of the new item in the proportion of the value of the reserved goods to the value of the main item. If the mixing takes place in such a way that the Purchaser’s item is to be regarded as the main item, it is agreed that the Purchaser will grant Tuchel pro rata co-ownership. The Purchaser is deemed to be an unremunerated depositary of the resulting exclusive ownership or co-ownership for Tuchel.
- In default of payment by the Purchaser, Tuchel is entitled to take the goods themselves; the Purchaser hereby irrevocably and absolutely grants consent to such recovery.
- The Purchaser is entitled to sell the reserved goods in the ordinary course of business; however, it hereby assigns all claims arising from the resale of the reserved goods, which accrue to it against its customers or third parties, to Tuchel.
- The agreement of a prohibition of assignment is not permitted to the Purchaser.
- The Purchaser is entitled to invoice and collect the claims arising from the sale of the reserved goods. The collection authorisation can be revoked if the collateral purpose of the retention is compromised, especially if the Purchaser is in default of payment. In the event that only a part of the claim is assigned to Tuchel, the payments of the debtor to the Purchaser are considered to be made first for the part of the claim not assigned to Tuchel. The amounts collected by the Purchaser are to be paid immediately to Tuchel.
- If Tuchel has revoked the authorisation to collect, the Purchaser is required and Tuchel is entitled to notify the assignment of receivables to third parties.
- The Purchaser is required to inform Tuchel immediately by presenting the relevant documents (including the garnishment records) if reserved goods or goods in co-ownership of Tuchel and receivables assigned to Tuchel are subject to enforcement.
- If the realisable value of the collateral exceeds Tuchel’s claim by more than 10%, Tuchel is under an obligation to release the Purchaser, at its request, from the excess part of the securities attributable to it.
11. Legal venue/applicable law
- If the Purchaser is a merchant, the exclusive legal venue for all disputes arising from this contract is Hamburg. The same applies if the customer has no general legal venue in Germany or his residence or habitual abode are not known at the time of the legal action.
- The applicable law is the law of the Federal Republic of Germany to the exclusion of the Vienna UN Convention on Contracts for the International Sale of Goods (CISG).