Skip to main content

General terms and conditions of contract and business

Status: August 2008

1. Scope of application

These terms and conditions shall apply exclusively to all – including future – deliveries and services. Conflicting or deviating terms and conditions of the Purchaser shall not be recognised by tfc, in particular not by unconditional delivery with knowledge of such conflicting or deviating terms and conditions.

2. Offers/conclusion of contract

a) The offers from tfc represent an invitation to treat within the meaning of German Civil Code s 145. The Purchaser may submit an offer/application by returning a signed copy to tfc. The Purchaser shall be bound by its offer for 14 days of receipt by tfc. A contract shall only come into effect upon confirmation and acceptance of the written order by tfc.

b) Details of dimensions, weights and other product properties contained in the offers and other enclosed documents are only approximate values and shall only become part of the contract if they are expressly guaranteed as binding in the order confirmation. Notwithstanding the above, the tolerances set out in our technical data sheet or, in the absence thereof, the customary commercial tolerances shall be deemed to have been agreed, even without expressly making a binding declaration, and in this order. The technical data sheet will be sent at our expense at the request of the Purchaser.

c) tfc reserves all rights, in particular property rights and copyrights, to formulations, manufacturing instructions, samples and other specifications and information that tfc provides to the Purchaser, whether of a physical or non-physical nature, but also specifically in electronic form; they may not be made accessible to third parties without the express written consent of tfc. This applies to written documents that have been designated as confidential. In the event of infringement, tfc reserves the right to assert claims for damages.

3. Price/payment/interest on arrears/lump-sum compensation

a) Prices are ex-works Güstrow, delivery clause INCOTERM 2000 EXW Güstrow, plus VAT at the statutory rate applicable at the time of performance, unless otherwise agreed in individual cases.

b) All final invoice amounts shall be due for payment without deduction within 14 days of the invoice date, unless otherwise agreed in individual cases.

c) tfc reserves the right to increase prices appropriately at the earliest four weeks after conclusion of the contract if previously incalculable cost increases arise after conclusion of the contract; this includes cost increases due to price increases for primary products and imported goods as well as changes in exchange rates. Relevant changes shall be proven to the Purchaser upon request.

d) Payment of the price must always be made – free of charge for tfc – without any deductions by bank transfer to the account:

Account holder: tfc tools for composite GmbH
Account number: 1400977
Bank: Deutsche Bank AG Rostock
Sort code: 13070000
IBAN: DE72 1307 0000 0140 0977 00

Payment is deemed to be timely upon receipt of funds in the account.

If tfc accepts cheques or bills of exchange based on a special agreement, this shall only be on account of performance; the Purchaser shall bear any cheque and bill of exchange charges.

e) If, after conclusion of the contract, the Purchaser’s inability to perform and thus a risk to service in return become apparent, in particular in the form of a significant deterioration in financial circumstances, not merely insignificant payment arrears or continued non-compliance with our terms of payment, we shall be entitled to revoke the agreed payment terms, including for future deliveries, and to make outstanding deliveries from all existing business agreements with the Purchaser only against advance payment or the provision of customary bank securities. Any further statutory claims shall remain unaffected.

f) The offsetting of counterclaims and the assertion of a right of retention by the Purchaser shall be excluded unless the counterclaims have been legally established, are undisputed or have been recognised by tfc in writing. However, the Purchaser shall be entitled to withhold payment due to counterclaims arising from the same contractual relationship.

4. Delivery/force majeure/packaging/transport/transfer of risk

a) tfc reserves the right to correct and timely delivery to us on the part of our suppliers. If this fails to occur due to circumstances for which tfc is not responsible, the Purchaser shall be informed accordingly without delay but at the latest within five working days of receipt of this information by tfc. In this case, tfc may withdraw from the contract after a reasonable waiting period. In the absence of correct and timely delivery to tfc, the Purchaser shall be entitled to withdraw from the contract after the expiry of a reasonable grace period to be set in writing or, in the exceptional cases regulated by law, without setting a grace period.

b) tfc shall not be bound to delivery dates confirmed by tfc in accordance with clause 4 c) if the Purchaser has not provided tfc with the information and documents required for scheduling, production and dispatch planning in good time and/or does not comply with its other contractual obligations which affect or influence the timely delivery of the goods to it; these include in particular:

(1) the final clarification of all technical details using the designations listed in the technical data sheet as amended from time to time

(2) the timely and proper fulfilment of the Purchaser’s obligations, in particular the receipt of all documents and official permits to be procured by the Purchaser

(3) the payment of an agreed down payment.

c) Delivery dates shall only be binding if tfc expressly confirms them in writing and are subject to the reservations set out in clause 4 a) and b).

d) Force majeure and similar events, including war, riots, lawful industrial action and unlawful strikes, acts of God, energy and raw material shortages, traffic and unavoidable operational disruptions as well as fire – also at our suppliers – shall release tfc from the obligation to delivery and performance for the duration of the disruption and the extent of its effects. In the event of unforeseeable duration, but no earlier than 30 days after their occurrence, the circumstances within the meaning of sentence 1 of this provision shall entitle tfc to withdraw from the contract in whole or in part without the Purchaser being entitled to claim damages; the same shall apply if the aforementioned circumstances make the performance of the contract uneconomical in the long term and it is no longer reasonable to expect tfc to adhere to the contract. tfc shall inform the Purchaser as soon as possible of the occurrence of force majeure or similar events; clause 4 a), sentence 3 shall apply accordingly.

e) tfc shall be entitled to make partial deliveries and render partial services and may – after invoicing accordingly – demand separate payment for these unless the partial delivery or partial service is objectively of no interest to or not reasonable for the Purchaser. The rights of the Purchaser due to delay or impossibility of our service remain unaffected by this.

f) If delivery or acceptance of the goods is delayed in the case of binding delivery dates for tfc or if tfc has announced the (untimely) delivery/service at least eight working days in advance and if the Purchaser is responsible for the delay, the risk of loss and deterioration of the goods shall pass to the Purchaser at the end of the working day agreed as the delivery date, regardless of other agreements on terms of delivery and payment.

5. Warranty

a) Notwithstanding the provision of German Commercial Code s 377 (HGB), the Purchaser must immediately note and confirm those defects that are obvious upon delivery of the goods, in particular short deliveries, moisture damage, forklift and other transport damage, on the delivery bill and the CMR consignment note and then immediately send tfc a copy of this delivery bill. Defects that can be identified by reasonable inspection and incorrect deliveries must be reported by the Purchaser in writing without delay but at the latest within seven working days of delivery.

b) The Purchaser shall bear the full burden of proof for all prerequisites for a claim, in particular the defect itself, the quantity of delivered goods complained about, the time at which the defect was discovered and the timeliness of the notice of defect.

c) In the event of a justified complaint about defects for which tfc is responsible, tfc shall be entitled, at its own discretion, to subsequent performance, that is, either to remedy the defect or to deliver defect-free goods within a reasonable period, which shall also consider the time required to procure the goods from the upstream supplier. If the subsequent performance is not successful within a reasonable period, the Purchaser may demand a reduction in the remuneration or, if the use of the articles supplied is not merely insignificantly impaired, the rescission of the contract. Clause 6 shall apply accordingly for any claims for damages on the part of the Purchaser.

d) The Purchaser’s statutory rights of recourse against tfc shall only exist if the Purchaser has not made any agreements with its customer that go beyond the statutory claims for defects. The scope of claims for damages and claims for reimbursement of futile expenses by way of recourse shall be governed by clause 6.

e) The Purchaser further undertakes to accept and process warranty claims of its customers in accordance with our warranty guidelines that are known to it.

6. Compensation for damages, reimbursement of futile expenses

a) Claims for damages and claims for reimbursement of futile expenses of the Purchaser based on negligent breach of our contractual or statutory obligations are excluded, unless otherwise stipulated in these terms and conditions or individual agreements deviating therefrom.

b) The exemption from liability in lit. a) above shall not apply regarding liability for culpable injury to life, limb and health, our liability for defects whose absence tfc had guaranteed, for mandatory liability under the Product Liability Act and for those cases in which tfc has breached a material contractual obligation (cardinal obligation) through minor negligence. In cases of a minor negligence breaching a cardinal obligation, however, our liability shall be limited to the foreseeable damages typical for the contract at the time of conclusion of the contract, unless this breach of contractual obligation has led to damage to life, limb or health.

c) Insofar as tfc’s liability is excluded or limited, this shall also apply to the personal liability of employees, workers, staff, representatives and vicarious agents.

7. Retention of title

a) tfc shall retain title to the articles supplied (hereinafter referred to as ‘reserved goods’) and to the documents attached to the articles supplied as long as tfc is still entitled to claims of any kind whatsoever from present or future business relations with the Purchaser. In the case of current accounts, this retention of title shall also serve to secure the respective balance of account. In the event of a default on payment or a sustained reduction in the Purchaser’s creditworthiness, tfc shall be entitled to provisionally repossess the goods subject to retention of title and the documents at the Purchaser’s expense, even without exercising the right of withdrawal and without setting a grace period; the Purchaser shall be obliged to surrender the same. The assertion of the retention of title as well as the complete or partial seizure of the articles supplied by tfc shall not be deemed a withdrawal from the contract, unless expressly designated as such.

b) The Purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. An ordinary course of business does not exist if the goods subject to retention of title are not resold subject to retention of title. The authorisation to resell the goods subject to retention of title in the ordinary course of business shall expire as soon as the Purchaser is in default of payment, a sustained reduction in its creditworthiness arises or it does not properly fulfil its other material contractual obligations towards tfc. The Purchaser hereby assigns to tfc all claims arising from the resale of the goods subject to retention of title including ancillary and security rights in the amount of the invoice value of the goods subject to retention of title. The above assignments are hereby accepted by tfc. Until the expiry of the above authorisation to resell the reserved goods in the ordinary course of business, the Purchaser shall also be entitled to collect the assigned claims. If this authorisation expires, tfc shall be entitled to inform the Purchaser’s customers of the assignment and to collect the claims itself. If the authority to collect expires, the Purchaser shall also provide tfc with all information and hand over all documents required to assert the assigned claims.

c) Any transfer or assignment by way of security or pledging of the reserved goods or the assigned claims shall not be permitted. The Purchaser shall notify tfc immediately in writing of any seizure or dispositions or interventions by third parties.

d) The Purchaser shall store the reserved goods and the documents free of charge for tfc. It shall insure them against the usual risks such as fire, burglary, theft, transport damage or water damage. The Purchaser hereby assigns to tfc any claims against insurers and third parties arising from a case of damage in the amount of the invoice value of the reserved goods concerned plus any transport and disposal costs. This assignment is also accepted by tfc.

e) If the value of the securities to which tfc is entitled exceeds the claims by a total of more than 20 per cent, tfc shall be obliged to release securities of tfc’s choice at the request of the Purchaser or a third party affected by the excess security.

f) The processing or transformation of the reserved goods by the Purchaser shall always be carried out for tfc. If the reserved goods are processed with other items not belonging to tfc, tfc shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as applies to the reserved goods.

g) If the reserved goods are inseparably mixed with other items not belonging to tfc, tfc shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other mixed items at the time of mixing. If the mixing takes place such that the Purchaser’s item is to be regarded as the main item, it shall be deemed agreed that the Purchaser shall transfer co ownership to tfc on a pro rata basis. The Purchaser shall safeguard the sole ownership or co ownership thus created for tfc.

8. Period of limitation

All warranty claims, claims for damages and claims for reimbursement of expenses on the part of the Purchaser shall lapse after 12 months, unless otherwise stipulated below. In cases of gross fault, that is, fraudulent or deliberate intent or gross negligence, claims under the Product Liability Act and in cases of injury to life, limb or health, the statutory periods shall apply.

9. Miscellaneous

a) None of the above clauses shall lead to a change in the burden of proof to the detriment of the Purchaser such that the burden of proof is placed on the Purchaser for circumstances that lie within our area of responsibility.

b) If the Purchaser is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, Güstrow shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship; however, tfc shall also be entitled to sue the Purchaser at its registered office.

c) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods, even if the Purchaser is domiciled abroad. The place of performance is Güstrow.

d) All agreements made between the Purchaser and tfc regarding the Purchaser’s orders and their execution are and shall be recorded in writing unless the parties have agreed otherwise in individual cases or agree otherwise in the future.

e) Should one or more provisions of the contract concluded with the Purchaser (including these General Terms and Conditions of Sale) prove to be invalid, void or incomplete, the validity of the remaining provisions of the contract shall remain unaffected. The contracting parties shall, where necessary in the due and proper form, replace the ineffective or void provision with a provision that best achieves the economic purpose or fill the gap in the contract with a provision that best achieves the economic purpose. If the ineffectiveness or invalidity of a provision is based on a measure of performance or time (deadline or date), a legally permissible measure shall replace the ineffective or invalid performance or time provision.

The registered office of the company is Güstrow/Germany.