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Air brake systems from Tietjen

Our General Terms and Conditions


1.0 General

1.1 These general terms and conditions apply to enterprises, legal entities under public law or special funds under public law.

1.2 Offers made by us are subject to confirmation. A contract of supply does not come into force until we have accepted the order in writing.

1.3 Our general terms and conditions will also apply to all future transactions, without this having to be expressly referred to once more. These terms and conditions will also apply if reference is made to them in our quotations, confirmations of order or other contractual statements; in such cases what is supplied will cover the goods and services described in the applicable contractual document.

1.4 Unless amended by an express written agreement between the parties, these general terms and conditions will have sole application. Any quotation, acceptance of offer, confirmation of order or sale of products will be subject to the present terms and conditions. Any terms and conditions or provisions which could amend the terms of contract applied by the ordering party are hereby rejected; they will only become legally effective on us if we accept them in writing. These provisions form the basis for any individual future purchases and exclude any other agreements.

1.5 The quantity, quality, description and any individual specifications of the goods will be in accordance with our quotation (if it is accepted by the ordering party) or with the order (if this is accepted by us). The ordering party is responsible for the accuracy of the order and for providing us with any necessary information with regard to the ordered goods within a reasonable period of time, so that the order can be carried out in accordance with the contract.

1.6 We reserve the ownership rights and copyright to all samples, specifications, drawings, cost estimates, price lists and similar information in tangible or intangible form, as well as in digital form; such information must not be made available to third parties, even if we have not expressly prohibited this.


2.0 Prices

2.1 Prices are quoted ex works or ex store and do not include packaging. Packaging is provided at cost and is not taken back. If we are prepared to deliver the goods to other locations, the ordering party will be responsible for the cost of transport, packaging and insurance.

2.2 All prices are quoted in EUR and are subject to the applicable rate of VAT.

2.3 After informing the ordering party in good time and before implementing the delivery of the goods we reserve the right to increase the price of the goods to the extent made necessary by price developments over which we have no control (e.g. exchange rate fluctuations, currency regulations, changes in customs tariffs, a significant rise in material and manufacturing costs) or because of changes in relation to suppliers. In the case of price increases which significantly exceed any normal increase in the cost of living, the ordering party will have the right of cancellation. In such cases he will be informed by us in text form.


3.0 Delivery and transfer of risk

3.1 Information relating to delivery times refers to the shipping of the goods ex works and is always non-binding, unless we have expressly reached a different agreement with the ordering party.

3.2 Part deliveries will be permitted to the extent that we have only received a part delivery from our own suppliers, and if they can reasonably be accepted by the ordering party without causing him significant additional work or costs, unless in the latter case we declare our willingness to assume any additional costs arising from the part shipment. In such cases we will inform the ordering party about the part shipments without delay.

3.3 Without prejudice to our other rights, in the event of any delay on the part of the ordering party we will have the right to demand an extension or postponement of the applicable delivery dates by the period of time in which the ordering party fails to meet its contractual obligations towards us. In addition to further rights or claims, we reserve the right to claim nonfulfilment of the contract. In addition, the provision of services on our part is subject to compliance with the agreed terms of payment. If these preconditions are not fulfilled in good time, the applicable deadlines will be extended accordingly; this will not apply if we are responsible for the delay.

3.4 If concrete dates are indicated with regard to delivery, implementation or completion and have been agreed as the basis for the placing of the order, in the event of a strike, a delay in delivery on the part of our suppliers or force majeure such deadlines will be extended by the duration of the circumstances preventing fulfilment. As soon as we learn of it we will inform the ordering party without delay about any impending delay and its probable duration.

3.5 If we are guilty of delay, the ordering party can require compensation for any damage incurred and proven. However, for every completed week of the delay such compensation will be limited to a maximum of 0.5% of the net price of the part of the delivery which is affected by the delay, and will not exceed a total of 5% of this value. The ordering party will have the right to prove that the damage is higher, and we will have the right to prove that it is lower than the maximum amount in accordance with Sentence 1.

3.6 If we are guilty of a delay in delivery, instead of the right described in Section 3.5 the ordering party will have the right, after a reasonable extension period has expired, to withdraw from the contract.

3.7 If at the request of the ordering party the goods are shipped by us, the risk of accidental destruction or deterioration of the goods will be transferred to the ordering party at the latest when they leave our stores. This applies regardless of whether the goods are shipped from the place of performance or who is responsible for the freight costs.


4.0 Payments

4.1 Payments are to be made net without deduction by bank transfer within 30 days from the date of invoice, with the date on which the payment is received as the decisive date. Any cash discount which has been agreed individually in advance will not be granted if the ordering party is in arrears with other payments. We do not grant cash discounts on any services which are invoiced. If the ordering party does not fulfil its payment obligations on the due date we will have the right – without waiving any further rights and claims to which we are entitled – to terminate the contract or suspend further deliveries to the ordering party. In other respects the statutory provisions relating to delays in payment will apply.

4.2 If the financial solvency of the ordering party deteriorates after the conclusion of the contract or if we find out subsequently that there are doubts about the ordering party’s solvency, we will have the right to demand payment in advance or security for all transactions which are being implemented. If the ordering party is in arrears of payment, all our existing claims for payment on the ordering party, including deferred payments, will fall due immediately. This is without prejudice to any further statutory claims we may be entitled to.

4.3 The ordering party will only have the right to withhold payments or offset counterclaims against them to the extent that such counterclaims arise from the same contractual relationship as that on which our claim to payment is based, are capable of being offset, are not disputed, or have been recognised by a court of law.


5.0 Retention of title

5.1 The retention of title agreed below serves to safeguard our current and future claims on the ordering party arising from the contractual relationships existing between us.

5.2 The goods supplied by us remain our property until payment in full of all our secured claims.

5.3 On our behalf the ordering party is provided with custody of the goods together with those goods which take their place in accordance with the following provisions (reserved goods).

5.4 The ordering party will have the right to process and sell the reserved goods in the normal course of business until a claim is made on them. Pledging the goods or using them as security is not permitted. If the reserved goods are processed by the ordering party, it is hereby agreed that the processing is implemented in our name and for our account as the manufacturers, and that we immediately acquire ownership of the newly created goods as a whole or – if the processing involves materials with several owners or if the value of the goods produced is higher than that of the reserved goods – partial ownership in the proportion of the value of the reserved goods to the overall value of the newly created goods.

5.5 In the event that no such acquisition of ownership should take place in our favour, the ordering party hereby assigns to us as security its future ownership or co-ownership of the newly created goods in the above-mentioned proportion. If the reserved goods are combined with other materials to form a new integral unit or are inseparably compounded with other such materials and if one of the other materials is to be regarded as the primary product, we will assign to the ordering party – to the extent that the primary product is our property – co-ownership of the integral unit in the proportion described in Sentence 1 above.

5.6 If the reserved goods are sold, the ordering party hereby assigns to us as security the claim on the purchaser arising from the sale in full or – if the reserved goods have been combined with other materials – in the proportion of the co-ownership. The same applies to other claims which replace the reserved goods or accrue in some other form with respect to the reserved goods, e.g. insurance claims or claims arising from tort in the case of the loss or destruction of the goods.

5.7 We hereby authorise the partner until further notice to collect in his own name the claims assigned to us. We will only have the right to revoke this authorisation in the event of the enforcement of a claim. If third parties take possession of the reserved goods, in particular in the form of attachment, the ordering party will inform them without delay of our ownership rights and inform us about this development, so that we can enforce these ownership rights. If this third party is not in a position to refund to us any legal or other costs which arise in this connection, the ordering party will be liable for such costs.

5.8 The release of the reserved goods or the goods or claims which replace them will be implemented by us in cases in which their value exceeds the value of the secured claims by more than 50%. The choice of the goods to be released will be at our discretion.

5.9 In the event of any violation of the contract by the ordering party – in particular in the case of arrears of payment – we will after withdrawing from the contract have the right to demand the return of the reserved goods.

5.10 If our terms of supply with regard to retention of title have not been agreed effectively because of contradictory defensive clauses, the assignment of the goods will be made subject to the condition precedent of payment in full of the agreed price.


6.0 Limitation of liability

To the exclusion of further claims we will be liable for defects in the goods supplied – with the exception of basis for claims regarding data protection law, in particular those of the DSG-VO – as follows:

6.1 Our liability for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, violation of the contract, violation of obligations during contract negotiations and tort is limited in accordance with the following provisions, provided that fault is involved in each case:

6.2 We shall not be liable in the event of minor negligence on the part of our bodies, legal representatives, employees or other subcontractors, unless it is a matter of a violation of significant contractual obligations. Significant to the contract are the obligation to deliver and install the supplied goods that is free of major defects in due time, as well as the duty to consult, protect and care, which is intended to enable the client to use the supplied goods in accordance with the contract, or which are intended to protect the life and limb of the client‘s personnel or to protect the client’s property from major damage.

6.3 Insofar as we are liable for compensation for damages on the merits in accordance with no. 6.2, this liability is limited to damages which we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen if we had exercised due diligence. Indirect damages and consequential damages resulting from defects of the supplied goods are furthermore only eligible for compensation if such damages are typically to be expected when the supplied goods are used as intended.

6.4 The above exclusions and limitations of liability apply to the same extent in favour of our bodies, legal representatives, employees and other subcontractors.

6.5 Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be free of charge and to the exclusion of any liability.

6.6 These restrictions do not apply to liability for deliberate behaviour, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.


7.0 Warranty, claims

7.1 Warranty claims made by the Ordering party are subject to his having duly met his responsibilities to check the consignment and to provide notification of defects as required by § 377 HGB.

7.2 The warranty period is one year from delivery or, if approval is required, from approval. The same statutory period of claims shall apply for claims for damages caused by intentional misconduct, gross negligence, and in the event of death, personal injury or illness or intentional and negligence breach of a user’s contractual obligation. With the sale of used goods, the statutory period of claims is excluded entirely with the exception of the claims for damages mentioned in point 2. Used machines are supplied, together with the existing accessories, in the condition they are in on the conclusion of the contract. Any liability for visible or hidden defects is also excluded if the object of purchase has not been inspected in advance by the ordering party, unless we have fraudulently or out of gross negligence failed to reveal known defects to the ordering party. Any longer terms stipulated according to § 438 Para. 1 No. 2 BGB (buildings and items used for a building), § 479 Para. 1 BGB (right of recourse) and 634a Abs. 1 BGB (construction defects) shall apply instead. The right of recourse against enterprises in accordance with § 478 BGB is also excluded from the shortening of the statutory periods.

7.3 In the case of a culpable breach of significant contractual obligations we will also be liable for gross negligence on the part of other persons than senior managers and for minor negligence, with liability limited in the latter case to damage which can reasonably be foreseen as typical for the type of contract. Any further claims are excluded.

7.4 If, despite all care taken, the delivered goods exhibit a defect that already existed at the time of transfer of risk, we will, at our choice, either repair the goods or supply replacement subject to notification of the defect occurring before the deadline. Provided that the ordering party can reasonably be expected to accept them, multiple repairs will be permitted. Except in cases of wilful intent, the total amount for claims for compensation and reduction in price will be 5% of the net purchase price.

7.5 The provisions of 7.2 will not apply in the case of warranted characteristics or in the case of culpable violation of significant contractual obligations. Claims of this type on the part of the ordering party or claims based on damage which is not incurred by the supplied goods themselves are, as defined by the following provisions, excluded to the legally permissible extent. If repairs or replacements are effected under the terms of the warranty this will not mean that the warranty period begins again from the beginning.

7.6 Product characteristics are only warranted if they are expressly described as such in the contract. Verbal information or information contained in documents does not represent warranted characteristics.

7.7 Any damage created by external influences, faulty installation and use, defective operation or maintenance, corrosion or normal wear and tear is excluded from the warranty. In the latter case the warranty in particular does not cover wear and tear on parts which are subject to wear. Parts which are subject to wear are defined as all rotating parts, all drive components and tooling.

7.8 Any quality defects in a part shipment do not entitle the ordering party to reject the outstanding delivery. This will not apply if the ordering party can prove that, under the prevailing circumstances, the acceptance of only one part of the delivery will be disadvantageous to its interests.

7.9 If the ordering party identifies a defect, it must not modify, process or assign the relevant goods to a third party. Instead it must first give us a reasonable period to inspect the defect and if necessary take the necessary remedial action (repair or replacement). If this is not done the ordering party will have no claim in relation to the defect. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case we must be notified immediately, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from us. Regardless of the presence of a defect, warranty claims will also become null and void if modifications or repairs are made to the goods by the ordering party or a third party without our agreement.

7.10 We must be informed about transport damage without delay. The ordering party must implement the appropriate formalities with the carrier, and in particular establish all the necessary information for the exercise of possible rights of recourse against third parties.

7.11 In the case of remedial action on our part we will have the duty of covering all the costs involved, in particular the cost of transport, travel labour and material, to the extent that these have not been increased by the fact that the purchase goods have been removed to a different location from the place of performance.

7.12 If we fail - within a reasonable period which we have been allowed within the meaning of § 439 BGB - to correct a defect or supply a replacement, or if such remedy or replacement delivery is impossible, proves unsuccessful or is refused for other reasons, any ordering party will only have the right, to the exclusion of all other claims relating to the supplied goods, to withdraw from the contract or reduce the purchase price.

7.13 The provisions of Sections 6.1 to 6.12 and 6.14 will apply correspondingly if the supplied goods cannot be used by the purchaser in the contractually agreed manner due to a fault on our part relating to omitted or incorrect advice before or after the conclusion of the contract, or as the result of a breach of other supplementary contractual obligations (e.g. instructions for operation or maintenance). Any further claims on the part of the ordering party are excluded.

7.14 Regardless of the legal grounds we accept no responsibility for damage which is not incurred by the supplied goods themselves, except

  • in the case of wilful intent,
  • in the case of gross negligence on the part of the owner of the company, its bodies or senior managers,
  • where there is culpable injury to life, limb or health,
  • in the case of defects we have fraudulently concealed or whose absence we have warranted,
  • in the case of defects in the supplied goods where liability is incurred under product liability legislation for personal injury or material damage to goods in private use.

In no case will we be liable for compensation for indirect damage, in particular for loss of profit or losses on the part of the ordering party.


8.0 Further development of the goods

Provided that such changes or improvements do not significantly detract from the form of function of the goods, we will have the right to modify and improve the goods without informing the ordering party in advance.


9.0 Place of performance, jurisdiction and applicable law

9.1 All legal relationships between us and the ordering party will be subject exclusively to the laws of the Federal Republic of Germany relating to legal relationships between parties based in Germany. The provisions of the United Nations Vienna Convention dated 11.04.1980 on contracts relating to the international sale of goods will not apply.

9.2 The place of performance will be Bücken. If the ordering party is a commercial business, a legal entity under public law or a special fund under public law based in Germany, the exclusive place of jurisdiction for any disputes arising from the contractual relationship will be the court which is responsible for our registered location. We will also have the right to institute legal proceedings against the ordering party at its own general place of jurisdiction.

9.3 Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, the legally effective regulations shall be deemed agreed to fill these loopholes, which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.


PRIVACY NOTE

The client acknowledges this and, by placing an order, agrees that we may process the necessary data from the contractual relationship, with reference to DSG-VO section 6 paragraph 1, for the purpose of fulfilling the contract and reserves the right to transfer the data to third parties (e.g. insurance companies and logistics service providers) to the extent necessary for the fulfilment of the contract.

Further information on the use of personal data in accordance with DPA regulation sections 13 and 14 and information on the rights of data subjects in accordance with DPA regulation section 15 – 21 can be found at: www.tietjengmbh.de/en/privacy-policy.html

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