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General terms and conditions Dipl.-Ing. Tietjen GmbH
1.1. The following General Terms and Conditions (hereinafter referred to as "GTC") shall apply to all purchase contracts concluded between Dipl.-Ing. Tietjen GmbH, Calle 40, 27333 Bücken (hereinafter referred to as "Supplier") as seller and the customer as buyer (hereinafter referred to as "Buyer").
1.2. These GTC apply exclusively in business transactions with entrepreneurs within the meaning of Sec. 14 BGB (German Civil Code), legal entities under public law and special funds under public law. Within the scope of an ongoing business relationship, the GTC shall also apply to all future services and deliveries of the Supplier.
1.3. Deviating or supplementary pre-formulated contractual terms and conditions of the Buyer shall not apply unless the Supplier has expressly agreed to their applicability in writing. This shall also apply if the Supplier does not object to the Buyer's pre-formulated contractual terms and conditions, performs the delivery without reservation or accepts payments from the Buyer.
2. Conclusion of contract
2.1. Offers and quotations of the Supplier on websites, in the online store, in catalogs or in price lists do not constitute a legally binding offer to conclude a purchase contract within the meaning of Sec. 145 et seq. BGB (German Civil Code), but merely an invitation to interested parties to submit such an offer.
2.2. A purchase contract shall only be concluded when the Supplier accepts an order of the Buyer by means of an order confirmation or by delivering the ordered goods. The order confirmation can be issued by mail, fax, e-mail or in electronic form.
2.3. When concluding a contract via the online store, the purchase contract is concluded as follows:
2.3.1. The Buyer selects the goods displayed in the online store and adds them to the shopping cart in the desired quantity. The Buyer can make changes to the shopping cart at any time by adding or removing goods. To complete the order, the Buyer follows the ordering process, which can be initiated through the shopping cart. After the Buyer has provided all the required information, especially shipping details and the desired payment method, the Buyer can check the details on the order summary page before submitting the order and correct them if necessary. A change is possible via the "CHANGE" button or via the "BACK" functions of the web browser. The customer makes a legally binding offer to conclude a purchase contract by clicking the "BINDING ORDER" button.
2.3.2. The customer will then receive a confirmation by e-mail that the order has been properly transmitted. Such confirmation does not constitute acceptance of the contractual offer. The conclusion of the purchase contract shall not take place until the Supplier accepts the order by means of an order confirmation issued by mail, fax, e-mail or in electronic form. The Supplier shall store the text of the contract in compliance with data protection.
2.4. The languages available for the conclusion of the contract are German and English.
3. Delivery and transfer of risk
3.1. Unless otherwise agreed, delivery shall be ex works, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). The risk shall pass to the Buyer upon separation of the goods and notification of readiness for shipment to the Buyer, at the latest upon leaving the factory. In addition, the risk shall pass to the Buyer if the Buyer is in default of acceptance.
3.2. Any transport damage must be reported to the transport company immediately upon delivery of the goods, noted in detail on the consignment note and reported to the Supplier immediately in writing or in text form. Acceptance cannot be refused due to insignificant defects.
3.3. Delivery dates or periods shall be deemed to have been agreed only approximately, unless they have been expressly confirmed as binding by the Supplier at least in text form.
3.4. If the Supplier has confirmed a delivery period as binding, this period shall, in case of doubt, commence on the date of the written order confirmation, but not before receipt of an agreed down payment on the Supplier's account. If the performance is dependent on the Buyer's cooperation, the period shall not commence before the Buyer has fulfilled his obligations to cooperate.
3.5. The obligation to deliver shall be suspended as long as the Buyer is in default with payment obligations to the Supplier arising from the contractual relationship concerned or any other contractual relationship.
4. Prices and terms of payment
4.1. All invoices of the Supplier shall be due and payable net within thirty (30) days from receipt of the ordered goods unless other payment terms have been agreed. This shall also apply to invoices for partial deliveries.
4.2. Unless otherwise agreed in individual cases, the Supplier's prices current at the time of conclusion of the contract shall apply plus any shipping and packaging costs, value added tax and other ancillary costs.
4.3. Claims of the Buyer from bonus agreements and agreed cash discounts cannot be asserted as long as the Buyer is in default with claims from the business relationship. The net invoice amount after deduction of discounts, freight, pallets and charges for services shall be decisive for the calculation of the cash discount amount.
4.4. Payments are to be made by the Buyer in general by bank transfer. In case of a contract concluded via the online store, payments are to be made by the Buyer using one of the payment methods offered there. In the event of a return debit note, the Buyer shall reimburse the Supplier for the respective bank processing fees, insofar as the Buyer is responsible for the return debit note. If the Buyer has granted the Supplier a SEPA direct debit mandate, collection shall take place on due date. The Supplier shall inform the Buyer of the collection of the SEPA direct debit no later than one day before due date.
4.5. The Supplier shall be entitled at any time, also within the scope of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The Supplier shall communicate such reservation at the latest with the order confirmation.
4.6. The Buyer shall only be entitled to the rights of set-off or retention to the extent that his claim has been legally established or is undisputed. Counter rights of the Buyer in case of material defects or defects of title or from the same purchase contract remain unaffected by this.
4.7. If, after conclusion of the contract, doubts arise as to the solvency or creditworthiness of the Buyer, the Supplier shall be entitled to refuse delivery until the Buyer pays the purchase price or provides adequate security.
5. Retention of title
5.1. Until full payment of the purchase price and payment of all previous and future claims arising from the same business relationship, the delivered goods shall remain the property of the Supplier. The Buyer shall adequately insure the goods subject to the Supplier's retention of title against fire, burglary and water damage. The claims for compensation arising from the insurance policies shall be deemed to have been assigned to the Supplier already now in the amount of the Supplier's claim. If goods are seized which are subject to the Supplier's retention of title, the Buyer shall immediately notify the bailiff and the execution creditor thereof. Likewise, the Buyer shall immediately notify the Supplier in advance by telephone and subsequently in writing of the seizure and of the notification to the bailiff and creditor. The seized goods shall be precisely described in this context.
5.2. The Buyer is permitted to resell the reserved goods in the ordinary course of business. The Buyer hereby assigns to the Supplier all claims in the amount of the purchase price of the reserved goods arising from the resale of the same. In the event that the reserved goods are resold by the Buyer together with other goods not owned by the Supplier or the Supplier only has a co-ownership share in the resold goods, the assignment of the claims from the resale shall only be made in the amount of the purchase price of the reserved goods. If the claim from the resale is included by the Buyer in a current account relationship with his customer, the recognized or causal balance, which is assigned in the amount of the respective purchase price of the reserved goods, shall take the place of the current account claim after it has been balanced.
5.3. If the Buyer is in default of payment or if a significant deterioration of its financial circumstances becomes apparent which endangers the Supplier's claim, in particular in the event of cessation of payments or an application for the opening of insolvency proceedings against the assets of the Buyer, the Supplier may demand the surrender of the reserved goods.
5.4. If the realizable value of the securities exceeds the Supplier's claims by more than ten (10) %, the Supplier shall release securities at the Buyer's request and at its option.
6.1. The assessment of the defectiveness of the object of purchase shall be based exclusively on compliance with the agreed properties and specifications. The agreed qualities include, in particular, all descriptions of the object of purchase that are the subject of the respective purchase contract or were publicly announced by the Supplier at the time of the conclusion of the contract, for example in catalogs or in the online store. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not there is a defect. Customary or insignificant deviations in quality do not constitute defects of the object of purchase.
6.2. If the Buyer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch - HGB), he must inspect the goods without delay and notify the Supplier in writing of any visible material defects immediately after delivery. Non-recognizable material defects must be reported in writing immediately after detection. Otherwise, the goods shall be deemed to have been approved. If the Buyer fails to notify the Supplier of the defect, the Supplier's liability for the obvious defect not notified or not notified in time shall be excluded in accordance with the statutory provisions.
6.3. The Buyer may not resell, install or otherwise use goods that are the subject of a complaint or are recognizably defective. If he violates this obligation, the Supplier shall not be liable for any damage resulting from the processing or other use, such as installation. Furthermore, in this case the Buyer shall bear the additional costs incurred for subsequent performance due to the resale, installation or other use.
6.4. If the delivery is defective at the time of transfer of risk, the Supplier shall, at its option, effect subsequent performance by repair or new delivery. The subsequent performance shall neither include the removal of the defective item nor the re-installation if the Supplier was not originally obliged to install the item. In this case, the Buyer shall also have no claim to reimbursement of the costs of removal and installation. In the event of failure of subsequent performance, the Buyer may, at its option, withdraw from the contract or reduce the price.
6.5. The Supplier is generally entitled to make the subsequent performance owed dependent on the Buyer paying the invoice amount due. The Buyer may, however, retain a reasonable part of the invoice amount in relation to the defect.
6.6. Claims of the Buyer for damages or reimbursement of futile expenses shall exist only in accordance with the liability provisions of the following clause 7 and are otherwise excluded.
7.1. The Supplier shall not be liable for damages or reimbursement of expenses, irrespective of the legal grounds. This shall not apply in the event of liability under the German Product Liability Act (Produkthaftungsgesetz - ProdHaftG), in cases of intent or gross negligence, in the event of culpable injury to life, limb or health or in the event of a breach of essential contractual obligations. Essential contractual obligations are, in particular, those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Buyer regularly relies and may rely. However, liability for a breach of essential contractual obligations shall be limited to the foreseeable, typically occurring damage, unless the Supplier is liable for intent or gross negligence, injury to life, body or health or under the Product Liability Act. The Supplier's liability for acts of courtesy, such as assisting the Buyer in loading a vehicle, is excluded.
7.2. Insofar as the liability of the Supplier is limited or excluded, this shall also apply to the personal liability of the legal representatives, employees and vicarious agents of the Supplier.
8.1. The limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance. Special statutory provisions on the limitation period shall remain unaffected (in particular Sec. 438 (1), (3), 445b BGB - German Civil Code).
8.2. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB - German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages of the Buyer within the scope of fault liability in case of intent and gross negligence, from injury to life, body or health as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
9. Force majeure and Unavailability
9.1. If the Supplier is temporarily prevented or significantly impeded from making delivery, in whole or in part, due to Force Majeure (as defined below), any agreed delivery period shall be extended by the duration of such impediment to performance. The same shall apply to a deadline set by the Buyer for the delivery, in particular for grace periods pursuant to Sec. 281 (1), 323 (1) BGB - German Civil Code.
9.2. Prior to the expiry of the extended performance period or deadline, the Buyer is neither entitled to withdraw from the contract nor to claim damages. The exclusion of the right of withdrawal ends if the impediment to performance exists for a period of more than two (2) months. In such a case, the Supplier shall also be entitled to withdraw from the contract. If the Buyer is contractually or legally entitled to withdraw from the contract without setting a grace period, this right shall remain unaffected.
9.3. Force majeure means any event beyond the control of a party which delays or disrupts the performance of the contractual services, such as war, warlike conditions, mobilization, import and export bans, and blockades, transport hindrances, operational disruptions, delays in the delivery of raw materials, strikes, lockouts and other labor disputes, even if they occur at the Supplier's upstream suppliers, as well as panic and epidemics. The Supplier shall notify the Buyer of the beginning and end of such hindrances.
9.4. If the Supplier is unable to meet binding delivery deadlines for reasons for which it is not responsible (non-availability of the service), it shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Supplier shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Buyer shall be refunded without delay. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by the Supplier if the Supplier has concluded a congruent hedging transaction, neither the Supplier nor its supplier is at fault or the Supplier is not obliged to procure the sold goods in the individual case for other reasons.
10. Applicable law, place of jurisdiction
10.1. These GTC as well as the contractual relationship between Supplier and Buyer shall be governed by the laws of the Federal Republic of Germany, excluding the UN sales law (CISG) and the conflict of laws provisions.
10.2. If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the Buyer and the Supplier shall be, at the Supplier's discretion, either the Supplier's place of business or the Buyer's place of business.