Terms and conditions

Sales, delivery and payment terms and conditions of Thorwesten Maschinenbau GmbH

1. General

All agreements and offers are based on the following sales, delivery and payment terms and conditions. All agreements made between us and our contract partners in conjunction with the execution of the contract are are put into writing in this contract as an additional agreement. Our sales, delivery and payment terms and conditions are exclusively applicable; we do not recognise conflicting conditions or conditions of the contract partner deviating from our conditions, unless we have given our explicit written agreement for their application. Our sales, delivery and payment terms and conditions also apply if we perform the delivery to our contract partner without any reservations in spite of knowing of terms and conditions of our contract partner which are contrary to or deviate from our General Terms and Conditions.

2. Offers

We retain the right of ownership and copyright for all cost estimates, drawings and other documentation. This applies, in particular, to such documents marked as “confidential”. Forwarding the documents to third parties requires our explicit written approval. The scope of the delivery is determined by our written order confirmation.

Until order acceptance all offers are non-binding. Should the order from the customer deviate from our offer, a contract will only come about with the supplier’s confirmation.

In the case of an offer with a time limitation, the time-frame is defined in the offer. In the event that no time-frame is specified, an order confirmation within 2 weeks is soon enough.

3. Price and payment

All prices are in Euro ex-works. The legal VAT valid at the time of the invoice is not included in the price and will be shown separately in the invoice. If production costs are higher we are authorised to increase prices by a reasonable amount, for business relationships with non-traders, however, only if delivery or performance should take place later than 4 months after contract closure. Discount deductions are only allowed to the extent shown in the order confirmation or the invoice. If the payment does not take place as agreed the right to previously agreed discounts, rebates or bonuses is forfeited. Payment must be made according to the details shown in the invoice via bank credit transfer to one of our accounts, if no other form of payment has been agreed upon. Inasmuch that nothing else has been agreed upon, payment must be made, for delivery ex-works, within 30 days after the invoice date, in such a manner that the sum required to settle the invoice is available for us on the due date at the latest. If this due date is exceeded we are authorised to charge interest to the amount of the bank-rates for overdrafts, however, at least 9 % above the basic interest rate of the European Central Bank, respectively at least 5 % above the ECB basic rate of interest if the contract partner is not a merchant. We reserve the right to assert additional losses due to delay. We are then also entitled, notwithstanding any other statutory rights, to demand prepayment for deliveries still to be made of the total invoice amount or after the provision of securities. Furthermore we are also entitled, after an adequate deadline – if the setting of a deadline is dispensable without this – to withdraw from the contract and to claim compensation for non-fulfilment. If more than one invoice amount and default costs are due, we have the exclusive right to specify the payment in accordance with § 366 BGB (German Civil Code). If the contract partner is in arrears, we have the right to cede these existing claims to a third party, in particular, for enforcement. The usual increased costs incurred (e.g. debt collection) are to be borne by the contract partner.

4. Delivery time

The delivery time begins with the sending of the order confirmation, not, however, before the timely and correct fulfilment of the contract partner’s obligations and the clarification of all technical queries. We reserve the right of objection to the unfulfilled contract.

The delivery time is deemed to have been fulfilled if, at its expiration, the object of delivery has left the plant or notification of readiness for shipment has been made. The delivery time is extended by a reasonable amount in the event of industrial disputes, in particular strikes and lockout, circumstances beyond the supplier’s control as well as the occurrence of unforeseen circumstances against our will (force majeure or acts of god) inasmuch that such circumstances are proved to have a significant impact on completion of the object of delivery or on its shipment. This also applies if such events occur at one of our suppliers.

We are also not responsible for the circumstances described above if they occur during an existing delay. In important cases we will immediately inform the contract partner of the beginning and end of such circumstances.

If the shipment is delayed at the contract partner’s wish, or if he comes into acceptance delay or if he culpably breaches his other cooperation obligations, then we are entitled to claim for the damage caused, including any possible extra efforts. We reserve the right to make further claims. Furthermore, the contract partner is, at the same time, when requested by us accordingly to do so, obliged to pay 90 % of the order sum in advance upon the expiry of the agreed delivery time. At the same, under the conditions mentioned, the risk of accidental loss or deterioration of the goods is passed on to the contract partner at a point in time when he fell behind with acceptance or payment. We are authorised, after fruitless expiration, at the end of a deadline fixed by us, to dispose over the object of delivery for other purposes and to supply the contract partner after a reasonably extended deadline.

We are liable in accordance with the statutory regulations, in so far that this contract is a firm deal in the sense of § 286 Abs. 2 Section 4 BGB or of the § 376 HGB. We are also liable in accordance with the legal regulations, in so far that, as a result, of a delay in delivery for which we are responsible, the contract partner is entitled to claim that his interest in further performance of the contract has been forfeited.

We are, furthermore, liable, based on the legal regulations, inasmuch that the delivery delay is caused by an intentional or grossly negligent contractual violation on our part; or any fault of our representatives or vicarious agents shall also be deemed to be attributable to us. If the delivery delay is not caused by an intentional breach of contract on our part, our liability for compensation will be limited to the foreseeable typical damage caused.

We also accept liability according to legal regulations, as far as the delay in delivery is caused by a culpable breach of an essential duty of the contract by us; in this case, however, the liability to compensation is limited to the foreseeable, typically occurring damage.

5. Delivery and transfer of risk

The shipment takes place as defined by us, either in a suitable vehicle or haulage contractor or by rail. The transport costs ex works will be paid by the contract partner unless agreed otherwise. Upon request, we will protect the delivery by a transport insurance; any costs incurred will be paid by the contract partner.

Transport and other packaging material will, in accordance with the packaging regulations, not be taken back; with the exception of pallets. The contract partner is obliged to ensure the disposal of the packaging at his own expense.

With the shipment of the supply parts the the risk is transferred to the contract partner, this also applies to partial shipments or we have taken charge of other services, e.g. the shipping costs or delivery and installation. If shipment is delayed by circumstances for which the contract partner is not responsible, the transfer of risk is on the day when the object of delivery is ready for shipment.

Partial shipments are allowed.

6. Liability for defects

Claims of the contracting party for defects shall pre-require that he has fulfilled his inspection and notification duties in a proper manner in accordance with §§ 377 of the German Commercial Code. The complaint is to be submitted in writing, a complaint submitted to a representative or third party will not be recognised.

In the event of justified defect complaints we have the option of either rectifying the defect object of delivery or of supplying a replacement object against the return of the defective goods. As long as we honour our obligations regarding the rectification of defects, the contract partner is not entitled to reduce payments or to claim cancellation of the contract, insofar that no failure of the repair exists. If a rectification of the defect or a replacement delivery is impossible, fails or is refused, the customer can demand, according to his choice, a corresponding price reduction or the cancellation of the contract. Paragraph 1 does not apply for consumer business regarding movable goods.

We assume liability in accordance with the legal regulations, inasmuch that the contact partner makes claims for damages which are based on intent or gross negligence by us or our agents or assistants. Insofar as we are not charged with any intentional contractual infringement, our liability for compensation is limited to the foreseeable, typical damage occurrence.

We are also liable, according to legal regulations, if we have culpably breached a material contractual duty, whereby our liability for compensation is limited to the foreseeable, typical damage occurrence.

We are not liable for defects caused for the following reasons: incorrect use, incorrect assembly respectively incorrect commissioning by the contract partner or a third party, natural wear and tear, incorrect or negligent treatment, unsuitable operating material, replaced materials, unsuitable construction work, unsuitable foundation, chemical, electro-chemical or electrical influences, unless these are attributable to fault on our part.

Liability on account of culpable injury to persons shall not be affected; this shall also apply to mandatory liability in accordance with the product liability regulations.

Any further claims arising from liability for defects beyond those mentioned above shall be excluded.

The period of limitation for defect claims is 12 months, beginning with the transfer of risk. The limitation period in the case of a delivery regress under § 445a and, 479 BGB shall remain unaffected; it amounts to 5 years reckoned as from delivery of the faulty item.

7. Joint liability

Liability for damages other than that provided for in Section 6 is – regardless of the legal nature of the claim – excluded. This shall apply in particular to indemnification claims arising from culpability at the time of the conclusion of the contract, because of other violations of obligations or because of claims in tort for indemnification of material damages as defined by § 823 of the BGB.

Insofar as liability for damages on our part is excluded or restricted, this shall also apply as regards personal liability for damages on the part of our staff employees and vicarious agents or subcontractors.

8. Limitations regarding offset and retention

The Buyer may set off only such counter-claims which are legally recognised, undisputed or acknowledged by us. The buyer shall only be authorised to exercise a right of retention to the extent that its counter-claims are based on the same contractual relationship.

9. Withdrawal

In the event of unforeseen events within the meaning of section 4 of the terms and conditions of delivery, insofar as they substantially change the economic importance or content of the performance or have a considerable effect on our operations, and in the event of the impossibility of execution, we shall be entitled to adjust the contract accordingly. Where this is economically unjustifiable, we shall have the right to withdraw wholly or partly from the contract.

Damage claims by the contract partner due to such a withdrawal do not exist. If we intend to make use of our right of withdrawal, we commit, after the awareness of the consequences of the incident, to inform the contract partner immediately, even if an extension of the delivery time was initially agreed with the him.

10. Reservation of proprietary rights

We reserve the right of ownership to all the goods we have delivered until all current and future claims under the business relationship have been paid.

In case of behaviour by the contract partner which is contrary to the contract, in particular default of payment we shall be entitled, after expiration of a reasonable period of grace, to recover the delivered object. The recovery of the delivered object by us does not constitute a withdrawal from the contract. After taking back the purchased goods, we shall be entitled to dispose of them and offset the proceeds derived from the disposal against the liabilities of the customer minus all reasonable costs of realization. If we do not dispose of the purchased goods the contract partner is obliged to refund the reduction in value incurred as a result of, and since, the delivery.

The contract partner is obliged to handle the purchased object with care; he is, in particular, obliged to, at his own cost, to insure to the full value against damage caused by fire, water and theft. Inasmuch that maintenance work and inspections are required the contract partner has to perform these in a timely manner at his own expense.

In the case of seizure of the goods or other interventions by third parties the customer must inform us in writing without delay so that we can lodge a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). To the extent to which the third party shall not be able to reimburse judicial and extra-judicial costs of an action according to § 771 ZPO, the customer shall be liable for our loss.

The processing or modification of the purchased item by the customer will always be carried out on our behalf. If the object of purchase is processed with other objects, not belonging to us, then we acquire co-ownership of the new item in relation to the value of the purchased object’s invoice (gross invoiced sum) to the value of the other processed objects at the time of processing. For the object getting processed the same shall apply as for the object of the contract, which was delivered with reservations. If the object of purchase is attached to real estate forming an important part thereof, the contract partner assigns any third party claims against the owner of the real estate to us, inasmuch that they serve value replacement, with all ancillary rights, including the right to admission of a safeguarding mortgage. If the contract partner attaches the object of purchase to his own real estate, he, in the event of a sale of the real estate or the rights of the real estate, assigns to us, with all ancillary rights, claims to the value of the purchased object.

The contract party shall be entitled to resell the object purchased in the proper course of business – however, not to sum lower than the purchase price owed – to secure our purchase price claim, he already now assigns to us in an amount equalling that of the final invoice all claims arising in its favour from such resale against the purchaser or third parties, irrespective of whether the object of sale is resold without or after processing. The contract partner shall still be authorised to collect this debt after the assignment. Our authority to collect the receivables ourselves remains unaffected. However, we agree to refrain from making collection as long as the contract partner applies the proceeds from the sale to meet its payment obligations toward us, is not in arrears and, in particular, no insolvency proceeds have been opened against the contract partner and the contract partner has not suspended payment. Should this, however, be the case, we can then insist that the customer discloses the assigned book account and their debtors, furnishes all the necessary particulars for collection, hands over all the relevant documents and informs the debtors of the act of transfer.

To secure all our claims, the contract partner also assigns to us any insurance claims that arise from the destruction of or damage to the object of purchase that may occur.

If the realisable value of the securities provided for us exceeds the total value of the claims due to us from supplies by more than 20 % we shall release collateral at our discretion, if so requested by the purchaser, until a security of 120 % has been reached.

In case that in foreign business the retention of title as agreed in this section is not permissible with the same effect as under German law, the goods shall remain our property until all our claims resulting from the sales contract are settled. If the foregoing reservation of title is not permitted with the same effect as under German law either, but it is permissible to reserve other rights in respect of the goods, then we are authorised to exercise all of these rights. The contractual partner is obliged collaborate on any and all measures that we want to adopt to protect our title or an alternative security right in the delivered goods.

11. Place of performance and court of jurisdiction

Unless otherwise stated in the order confirmation the place of performance is our place of business. The court of jurisdiction applies to all disputes arising from the contractual relationship, if the contract partner is an agent, a juristic person of the public law, or tangibles governed by the public law, the court of law responsible for our business location is agreed upon; we are, however, also entitled to issue complaints at the registered office of the customer.

Only the Substantive Law of Germany and its case referral mechanisms apply to the contractual relationship to the exclusion of the UN Law on International Sales.

Version January 2021