1. Scope, Application
These general conditions of delivery (hereinafter: T&Cs) apply to the supply of all goods and services by Tintometer GmbH, Schleefstrasse 8-12,
44287 Dortmund (hereinafter "the company"). Deviating (and supplementary) General Terms and Conditions of Business of the customer do not apply.
They will only apply if and when the company has explicitly declared its consent to them or parts of them. At the same time, the unconditional delivery and/or the supply of services by the company will not constitute any acknowledgement of the deviating or supplementary conditions of business of the customer.
2. Quotes, Documentation
2.1 The quotes made by the company will only apply for 90 days unless other arrangements have been explicitly agreed.
2.2 The documentation accompanying the quote such as illustrations, drawings and plans, details of weights and measurements are only approximately
authoritative unless the company has explicitly designated them as binding.
2.3 The company reserves all rights of ownership and copyright to estimates, drawings and plans and other documentation without restriction for purposes of commercial exploitation. This documentation may not be made accessible to third parties without the company's explicit prior consent. This documentation is to be returned to the company if the order is not placed. In this case, any copies of the documentation are to be destroyed.
3. Delivery, Prices, Customs Duties and Charges, Payments
3.1 Partial deliveries are permitted if this is reasonable for the customer.
3.2 The prices given do not include shipping, packaging or insurance and do not include value added tax (net prices).
3.3 Delivery dates are only binding if this has been explicitly agreed. Delivery dates will be deemed to have been complied with when the goods have left the company (or the shipping point) when the delivery date has expired or when the customer has been notified that the goods can be collected.
3.4 Compliance with agreed deadlines for the supply of goods or services presupposes the timely receipt by the customer of all documentation, necessary approvals and releases, in particular plans, to be supplied and compliance with the agreed payment conditions, e.g. deposits, and other obligations by the customer. If these requirements are not fulfilled on time, the agreed delivery and performance deadline periods will be extended appropriately; this will not apply if the company is responsible for the delay.
3.5 If failure to comply with agreed deadline periods is due to Acts of God, e.g. mobilisation, war, civil commotion or similar events, e.g. strikes, lock-outs etc., the agreed deadline periods will be extended appropriately. The same will apply if the company itself has not received deliveries on time or correct delivery. (In the case of agreed delivery dates, the following will apply: we reserve the right to correct and timely supply ourselves.)
3.6 All taxes, customs duties, charges etc. due outside Germany will be borne by the customer.
3.7 The company will invoice the customer for the goods on the day of delivery or thereafter. The invoice amount is to be paid within 30 days following receipt of the invoice unless other arrangements have been agreed. The customer will be in arrears of payment on the thirtieth day following receipt of the invoice (Section 286 Subsection 3 of the German Civil Code). The company will also refer to this again in the invoice.
4. Transfer of Risk, Accepting the Goods and Notifying Defects
4.1 If the customer is a merchant, the following will apply: risk will transfer at the latest when the delivered items are sent to the customer, including when partial deliveries are made or the company has performed or paid for other services such as freight charges or delivery and installation/setting-up.
4.2 If the customer is a merchant, the following will apply: if shipping is delayed due to circumstances for which the customer is responsible, risk will transfer to the customer from the day on which the customer is notified by the company that the goods may be collected; however, the company is obliged to take out insurance policies at the customer's request and expense.
4.3 The customer may not refuse to accept deliveries or approve services due to minor defects.
4.4 If the customer is a merchant, the following will apply: the statutory examination and complaint obligations (Sections 377, 378 of the German Commercial Code) apply without restriction. If the customer fails to examine the goods immediately in accordance with Sections 377, 378 of the German Commercial Code or report a defect immediately, the goods will be deemed to have been approved and the customer may not assert any claims due to defects or incomplete delivery. If the company negotiates with the customer on one of these complaints made, this will not imply any tacit waiver of the objection of late examination of the goods or notification of the defect unless this is explicitly declared. The same applies to any willingness on the part of the company to correct the defect (or in the case of an actual and completed correction).
5. Retention of Title
5.1 The company will retain ownership of the delivered items (hereinafter: reserved goods) until all claims and including the future arising or conditional
claims arising from simultaneous agreements have been fulfilled, regardless of reason in law. This will also apply if payments are made for specifically
nominated claims. If there are any indications that justify the assumption that the customer is insolvent or the threat of such an assumption, the company will be entitled to cancel the contract and demand the return of the goods without notice.
5.2 Processing or treating the reserved goods will be carried out for the company in its capacity as a manufacturer within the meaning of Section 950 of the German Civil Code without subjecting the company to any obligation. The processed goods are deemed to be reserved goods in accordance with No. 1. When the reserved goods are processed, connected and blended with other goods by the customer, the company will be entitled to joint ownership of the new item at the invoice value of the reserved goods as a proportion to the invoice value of the other goods used. If the company's ownership is extinguished by connection or blending, the customer will immediately transfer those rights of ownership of the new condition or object to which it is entitled to the amount of the invoice value of the reserved goods and will store it free of charge for the company. The joint ownership rights that result thereafter will be deemed to be reserved goods within the meaning of No. 1.
5.3 The customer is only entitled to resell, process, connect with other items or otherwise install the reserved goods in the normal course of business as long as it is not in arrears with payment of the purchase price. Every other disposition of the reserved goods is not permitted. Seizures of or other access gained by third parties to the reserved goods are to be notified to the company immediately. All costs of intervention will be at the expense of the customer if they cannot be collected from the third party and the third-party proceedings have been justifiably asserted. If the customer defers payment of the purchase price to its own customer, it will be required to retain ownership of the reserved goods at the same conditions at which the company has retained ownership of the reserved goods. However, the customer will not be obliged to reserve the right to assert claims for ownership in respect of claims against its customer in future. Otherwise, the customer will not be entitled to resell the goods.
5.4 The customer's claims arising from the resale of the reserved goods are hereby immediately assigned to the company. They will be used as security to the same extent as the reserved goods. The customer will only be entitled and obliged to resell them if it can be guaranteed that claims to which it is entitled will transfer to the company.
5.5 If the reserved goods are sold at a lump-sum price by the customer together with other goods not supplied by the company, assignment of the claim from the sale will be made at the invoice amount of the reserved goods sold.
5.6 If the assigned claim is included in a revolving account, the customer will immediately assign that part of the claim corresponding to the amount of the balance, including the final balance from the revolving account, to the company.
5.7 The customer is authorised to collect the assigned claim until this authorisation is cancelled by the company. The company will be authorised to cancel this authorisation if the customer fails to duly fulfil its payment obligations arising from the business relationship or if circumstances become known that justify considerably reducing the customer's creditworthiness. If there is reason to exercise right of cancellation exist, the customer will, on request by the company, be required to immediately make known the assigned claims and its debtor, to provide all the information required for collecting the claims, to hand over to the company the related documentation and to notify the debtor of the assignment. The company itself will also be entitled to notify the debtor of the assignment. In addition, the customer will not be authorised to assign the claims, including on the basis of our authorisation to collect claims.
5.8 If the nominal value of the guaranteed claims (invoice value of the goods or the nominal amount of the rights to recover debts) exceed the value of the existing securities for the secured claims as a whole by more than 10%, the company will, at the customer's request, be required to release those securities of its choice.
5.9 If the company asserts its right of retention of title, this will only be deemed to be cancellation of the contract if this is explicitly declared by the company. The customer's right to possess the reserved goods will expire if it does not fulfil its obligations arising from this or another contract.
6. Warranty, Expiration of Limitation Period
The company is liable as follows for any defects in deliveries to the exclusion of further claims:
6.1 At the company's option, all delivered articles displaying defects are to be repaired by the company free of charge or new articles are to be supplied,
provided the cause of the defect already existed when risk transferred to the customer (supplementary performance).
6.2 Where a complaint is justified, the customer will be required to give the company the opportunity of supplementary performance within an appropriate period.
6.3 If supplementary performance fails or is unreasonable for the customer (Section 440 of the German Civil Code) or if it is unnecessary because:
supplementary performance is ultimately refused by the supplier; supplementary performance does not achieve the desired effect by a contractually
agreed date or within a given period and the customer has linked the continuation of its interest in service to the timeliness of the service in the contract; or there are special circumstances which, taking into consideration the interests of both parties, justify immediate cancellation of the contract (Section 323 Subsection 2 of the German Civil Code), the customer will be immediately entitled to reduce the purchase price or, at its, option, cancel the contract and demand compensation instead of service or the reimbursement of monies expended in vain.
6.4 The expenses required to perform supplementary performance, in particular the shipping, handling, labour and material costs, will be borne by the company. This will not apply if the costs increase because the article has been taken to another place other than the destination following delivery unless such
transport is consistent with the intended use of the article.
6.5 If the customer accepts a defective delivery while being aware of the defect, it will only be entitled to the claims and rights relating to the defect if it reserves the right to do so when accepting delivery.
6.6 The descriptions of measurements, weights, performance, power-consumption etc. made in prospectuses, advertising material, descriptions etc. are
approximate information and provide no information concerning the inherent nature of our products. They do not form the basis of any guarantee of the nature of our products or their durability. The company reserves the right to alter its products; this also applies to alterations in their design.
6.7 The following applies to merchants:
Claims for supplementary performance will expire one year following the beginning of the statutory limitation period; the same applies to cancellation and price-reductions. This deadline period will not apply if the law as set out in Section 438 Subsection 1 No. 2 (Buildings and Items for Buildings, Section 479 Subsection 1 (Entitlement to Recourse) and 634(a) Subsection 1 No. 2 (Construction Faults) of the German Civil Code compulsorily prescribe longer deadline periods and exclude cases of intent, malicious concealment of the defect, failure to comply with a guarantee of inherent nature of a product or the breach of essential contractual obligations (cardinal obligations). In such cases the statutory expiration deadline periods will apply. The legislative provisions on suspension, interruption and recommencement of the deadline periods will remain unaffected.
6.8 Any rights of recourse on the part of the customer against the company in accordance with Section 478 of the German Civil Code (Recourse by the
company) will exist only to the extent that the customer has not reached any agreements with its customer on claims exceeding statutory claims for defects. In accordance with Section 478 Subsection 2 of the German Civil Code, No. 6.5. above also applies correspondingly in respect of the extent of right of recourse against the company.
6.9 Any claims for compensation by the customer due to a physical defect will be regulated in accordance with No. 8.
6.10 The company will routinely decline to accept returned goods unless the company has given its explicit prior consent or is obliged to accept the goods back due to a justified cancellation of the contract. If the customer returns the goods to the company in contravention of this provision, it does so at its own risk and expense.
7. Right of Retention and Offsetting
7.1 If the customer is a merchant, he/she will only be entitled to retain payments due to undisputed physical defects or defects established by the courts.
7.2 The customer is only entitled to offset payments if counter-claims are undisputed or have been established by the courts.
8. Compensation / Exclusion of Liability
8.1 Any claims for compensation by the customer will not be recognised, regardless of reason in law. This will not apply in case of malicious concealment of the defect, failure to comply with a guarantee of a product's inherent nature, death, physical injury or harm to human health and/or in the case of a deliberate or grossly negligent breach of obligation on the part of the company or the breach of essential contractual obligations (cardinal obligations). At the same time, claims in accordance with the German Product Liability Act will not be affected by this limitation of liability.
8.2 However, claims by companies to compensation for the breach of essential contractual obligations will be limited to the foreseeable damage typical in
contracts except for liability in cases of intent or gross negligence or due to death, physical injury or harm to human health.
8.3 The aforementioned limitations to liability apply equally to claims for reimbursement of monies expended in vain (Section 284 of the German Civil Code).
An alteration to the burden of proof to the disadvantage of the customer is not connected with the above provisions.
9. Online Shop
Our online shop is only available to companies and not retail customers (B2B shop only). It can only be accessed by means of authorised access.
The following applies to sales via the company's online shop:
9.1 Concluding the Contract, Ordering Procedures, Contract Language
The display of the products in the company's online shop does not constitute a legally binding offer; it is only a non-binding online catalogue. By sending the order in the final step of the ordering process, the customer places a binding order for the goods contained in the basket. The company will confirm its receipt of the order in a separate confirmation in which the customer will also receive these T&Cs once again, including instructions on its rights in case of cancellation (see below). This order confirmation does not yet constitute the company's acceptance of the offer. The contract is not valid until the goods are shipped or until the order is confirmed separately.
Technical means leading to conclusion of the contract and with which the customer can again check the information it has given are as follows: after
the customer has placed the desired product in the basket, the customer presses the button "Basket". Before pressing the button "Place order (includes obligation to pay.)", the customer can again check the information it has given. The ordering procedure can be cancelled at any time by closing the browser window before pressing the button "Place order (includes obligation to pay)". The customer can obtain further information, for example on how to make corrections, on the individual pages.
The language available at the time the contract is concluded is German.
9.2 Storage and Inspection of the Text of the Contract
The text of the contract will be stored for three months. The customer will receive all relevant data concerning its order in text form with the confirmation of the order. The customer may also request that it be sent a copy of the stored text of the contract free of charge (except for the usual telecommunications connection charges) via email@example.com, e.g. by email, which can also be printed out).
10.1 The place of fulfilment is the registered offices of the company.
10.2 If the customer is a merchant, legal entity in public law or a special fund in public law, the sole place of jurisdiction will be the registered offices of the
company. However, the company is also entitled to institute legal proceedings against the customer at its registered office or the place of fulfilment.
10.3 German law applies to the exclusion of the provisions of the UN Convention of the International Sale of Goods together with the provisions of the conflict
of laws in international private law and in particular the provisions of the Rome I Regulation, which regulates cross-border contractual relationships.
10.4 Should individual clauses of these General Conditions of Purchase be wholly or partially invalid, the validity of the remaining clauses or the other parts of such clauses will not be affected.
10.5 These T&Cs are in English and German. In cases of contradictions, the German version will be authoritative.
Correct at: June 2013