(1) All deliveries, performances and offers made by TRiooo are conditioned upon these Standard Terms and Conditions. They shall exclusively apply to all agreements between TRiooo and its contractual partner (hereinafter called “the buyer”) about deliveries or other performances by TRiooo. They shall also govern any future contract of sale and deliveries to the buyer even though the parties have not concluded any extra agreement.
(2) Any conditional or different terms proposed by the buyer are objected to and will not be binding unless assented in writing by TRiooo. Any conditions of the buyer or third parties shall not be accepted even if TRiooo refers to a letter which includes such conditions or refers to such conditions.§ 2 Orders and Conclusion of Contract
(1) All offers made by TRiooo are subject to change and non-committal provided that it is not designated as a firm bid or contains a concrete term of acceptance. Orders can be accepted by TRiooo within fourteen days after submittal.
(2) The relationship between TRiooo and the buyer is exclusively ruled by the agreement in written form including these Standard Terms and Conditions. It reflects all arrangements the parties previously agreed to verbally with regard to the subject matter of the contract. Verbal undertakings of TRiooo prior to the conclusion of this agreement are non-binding and will be replaced by the agreement in written form provided that these arrangements shall not be binding upon express stipulation. Any amendments or alterations of this agreement including these Standard Terms and Conditions require written form. No employee of TRiooo is entitled to conclude different agreements excluding TRiooo’s general managers or proxy holders.
(3) Information made by TRiooo with regard to the subject of delivery or performance (e.g. weight, dimensions, present utilization values, load capacity, tolerances and technical data) and the respective description (e.g. drawings, pictures) shall not be binding provided that the purpose of the agreement does not require an exact conformity. Such information does not represent any characteristic feature guaranteed by TRiooo but a description or specification of delivery or performance. Customary deviations and deviations based on legal provisions or technical improvements as well as the replacement of components by equivalent parts are admissible provided that the usability of the delivery item with regard to the contractual purpose is not affected.
(4) Any offers and cost estimates as well as illustrations, drawings, specifications, models, tools and other documents and aids provided by TRiooo are subject to proprietary right and copyright of TRiooo. The buyer is not entitled to make these items accessible to third parties, to publish them or to use and copy them without prior consent of TRiooo. The buyer shall return these items on TRiooo’s request or destroy any copies if they are not needed any more in the ordinary course of business or the conclusion of an agreement fails.§ 3 Price and Terms of Payment
(1) The price of the products shall be confirmed in TRiooo’s acknowledgement of order with regard to the scope of delivery and performance. Increased efficiency or special services shall be charged at extra costs. All prices are given by TRiooo in EURO on ex works basis plus packaging, insurance, VAT, customs duty and fees and taxes in the event of export shipment.
(2) If the parties have agreed on list prices and delivery shall take place four months after conclusion of contract, TRiooo’s list prices at the time of delivery shall be applied (less the agreed proportional or fixed rebate in each case).
(3) Invoiced prices shall be paid within thirty days without any deductions unless otherwise stipulated in written form. The operative date for payment is the receipt of payment at TRIooo. Checks will be accepted as payment after encashment. If the buyer fails of making any payment on the due date, interest on the amount unpaid at the rate of 8% p. a. shall be charged; the entitlement to claim higher interest or further damages in the event of default of payment remain unaffected.
(4) The buyer’s rights to offset claims or to retain payments are excluded unless outstanding claims of the buyer are undisputed or legally binding.§ 4 Delivery
(1) All deliveries take place ex works.
(2) Time for delivery or delivery dates announced by TRiooo are not binding except when otherwise stipulated. In the event that parties have agreed to shipment of goods, TRiooo meets the deadline when handing delivery items over to the carrier or a third person instructed to handle the shipment.
(3) Regardless of its rights based on buyer’s default of payment, TRiooo is entitled to claim an extension of delivery dates and dates of performance for the time period in which the buyer does not meet his obligations.
(4) TRiooo is not liable for impossibility of delivery or delay in delivery in the event of force majeure or circumstances impossible to foresee at the conclusion of contract which TRiooo is not responsible for (e.g. all sorts of business disruptions, difficulties to obtain material and energy, delay in delivery, strike, lawful lockout, scarcity of labor, want of raw material and energy, difficulties to obtain administrative decisions and approvals, missing, incorrect or late delivery by supplier). If such events hinder delivery or performance considerably or make them impossible and the respective delay is not of temporary length of time, TRiooo is entitled to withdraw from contract. In the event of temporary delays, time for delivery or delivery dates will expire to the extent of the period of hindrance. If the period of hindrance makes it unacceptable for the buyer to accept delivery or performance, he is entitled to withdraw from contract by immediate written declaration.
(5) TRiooo is entitled to part deliveries if
- part delivery is usable for the buyer with regard to the purpose of contract,
- delivery of the remaining products has been secured and
- no additional work or costs arise for the buyer (except TRiooo is willing to take over such costs).
(6) In the event that TRiooo defaults on delivery or performance, or in the event that for any reason whatsoever delivery or performance becomes impossible, then TRiooo’s liability is restricted to the extent as stipulated in § 8 of the Standard Terms and Conditions.§ 5 Place of Performance, Shipment, Packaging, Acceptance, Transfer of Risks
(1) Except when otherwise stipulated, place of performance for all obligations with regard to this agreement shall be the legal domicile of TRiooo.
(2) Mode of shipment and packaging is left to TRiooo’s orderly discretion. Packaging in accordance with the German regulations on packaging will not be taken back. The disposal of packaging will effected at the expense of the buyer.
(3) The risk of damage or loss of goods shall pass to the buyer at the time when the delivery item is delivered (the beginning of loading is decisive) to the carrier, forwarding agent or any third party entrusted with the execution of shipment. This shall also apply in the event of part deliveries or other deliveries assumed by TRiooo. In the event that shipment or delivery is delayed due to circumstances which originate from the buyer, the risk of damage or loss shall pass to buyer at the day on which TRiooo has notified the buyer its readiness for shipment.
(4) Storage costs after transfer of risk shall be borne by the buyer. In the event that TRiooo will store delivery items, the storage costs will amount to 0,25% of the invoiced amount per week. TRiooo reserves the right to claim higher damages upon objective evidence.
(5) The shipment of goods will not be insured against theft, breakage, shipment, fire and water or other risks unless otherwise instructed by the buyer.§ 6 Warranties
(1) The warranty period hereunder shall be one year after delivery. Insofar as the law mandatorily regulates longer warranty periods, these shall apply.
(2) The delivered items shall be checked carefully and immediately after delivery to the buyer or third parties named by the buyer. They are deemed to be approved if TRiooo does not receive a notice of defects in accordance to § 2 (2) 4th sentence concerning apparent defects or defects which could be identified in the event of immediate and careful inspection within seven working days after delivery or within seven working days after detection of other defects or the point of time when these defect have been detected in the normal course of use. By request of TRiooo the buyer shall return the objected delivery item CPT to TRiooo. If the buyer’s objection is correct, TRiooo will remunerate transportation costs up to the cheapest shipping route and the costs of removing the defective and installing the new delivery item unless costs will increase since the delivery item is not found on the place of its normal use.
(3) In the event of material defects TRiooo shall at its own option repair or replace such products at its risk and expense within a reasonable period of time. In the event of a failure, i. e. impossibility, unacceptability, refusal or unreasonable delay of repair or replacement, the buyer is entitled to withdraw from the agreement or reduce the purchase price.
(4) If TRiooo is responsible for the respective defect, the buyer is entitled to claim damages in accordance with the provisions pursuant to § 8.
(5) Any warranty claims are excluded if the buyer has modified the delivery item by himself or by third parties so that repair is impossible or unacceptable. The buyer shall bear all additional repair costs based on this modification. Warranty claims are also excluded if products from TRiooo are combined with products of other manufacturers which effect defects on TRiooo’s products.§ 7 Intellectual property rights
(1) TRiooo guarantees in accordance with the provision pursuant to § 7 that the delivery item is free from intellectual property rights or copyrights of third parties. The parties will inform each other immediately in written form if third persons claim the infringement of such rights.
(2) In the event that the delivery item infringes intellectual property rights or copyrights of third persons, TRiooo shall have the option to change or replace the delivery item on its own costs so that the delivery item does no longer infringe rights of third persons and fulfill its agreed function, or to provide the buyer with a right to use by concluding a license agreement. If TRiooo is unable to achieve that within a reasonable time limit, the buyer is entitled either to withdraw from contract or to reduce the purchase price. Damage claims are restricted in accordance to § 8.§ 8 Liabilities
(1) TRiooo’s liability for damages irrespective of the legal basis, in particular due to impossibility of performance, defective or insufficient delivery, breach of contract, culpa in contrahendo and tortious act, is restricted in accordance with the provisions set forth in § 8.
(2) TRiooo is not liable for damages caused through
a) negligence by its legal representatives, employees and other auxiliary persons,
b) gross negligence by its non-executive employees and other auxiliary persons
provided that the damages do not concern essential contractual obligations. Essential contractual obligations concern obligations with regard to timely deliveries free of defects as well as installation and obligations with regard to consulting, security and custodial care which enable the buyer to safeguard life and limb of its staff or third persons or to its properties in order to avoid considerable damages.
(3) As far as TRiooo is liable for damages pursuant to § 8 (2) its liability is limited to damages which TRiooo has foreseen as a possible result of a breach of contract or could foresee with due care considering circumstances which it knew or could have known. TRiooo is not liable for indirect or consequential damages resulting from defects of the products except for those damages which could be expected in the course of normal use. A normal use is not on hand if the delivery item is combined with products from other manufacturers.
(4) If TRiooo is liable for negligence, its liability with regard to damages to property and personal injury is limited to the amount covered by TRiooo’s product liability insurance or business liability insurance, including the breach of essential contractual obligations. TRiooo shall provide the buyer with a copy of the insurance policy on his request.
(5) The above restrictions shall also be applied to legal representatives, employees and other auxiliary persons of TRiooo.
(6) If TRiooo provides the buyer with technical information or advice, TRiooo is not liable provided that it is cost-free and does not belong to the essential contractual obligations of TRiooo.
(7) The restrictions in accordance with § 8 are not applicable to deliberate actions, damages arising out of death, injury to body or health or with regard to the German Product Liability Act.§ 9 Retention of Title
(1) The retention of title hereinafter provided shall safeguard all existing and future demands of TRiooo against the buyer concerning the existing supply relationship between both parties including requests for balance payment concerning the current account with this supply relationship.
(2) All goods delivered by TRiooo to the buyer shall remain TRiooo’s property until payment in full of price of all demands of TRiooo. These goods and the goods under this retention of title are hereinafter called retained goods.
(3) The buyer shall deposit the retained goods cost-free on behalf of TRiooo
(4) The buyer shall be entitled to process and sell the retained goods in the ordinary course of business until the enforcement of retained ownership (Sec. 9). Pledging of retained goods and transfer by way of security are prohibited.
(5) If retained goods are processed by the buyer, it is agreed that the processing occurs by order and for account of TRiooo as manufacturer and TRiooo shall become owner or – if processing includes materials of several owners or the value of the processed product is higher than the value of the retained goods – co-owner (tenancy in common) of the new manufactured product at the rate of the value of the retained goods to the value of the new product. In the event that an ownership of TRiooo does not occur, the buyer shall already assign his future property rights or proportional tenancy in common concerning the new product by way of security to TRiooo. If retained goods are mixed or inseparably compounded with other products to a homogeneous product and the other product can be regarded as the main product, then TRiooo assigns its pro-rata tenancy in common with regard to the homogeneous product as far as it is its property to the buyer in the proportion as named in sentence 1.
(6) If the retained goods are resold, the buyer shall already assign all claims against purchaser arising from resale by way of security to TRiooo. If TRiooo is co-owner of the retained goods, the assignment shall occur in accordance with TRiooo’s co-ownership share. The same shall apply to other claims which substitute the retained goods or arise with regard to the retained goods such as claims against insurances or claims based on tortuous act. TRiooo shall irrevocably authorize the buyer to collect the assigned claims on his own behalf but for TRiooo’s account. TRiooo is entitled to revoke the direct debit authorization in the event of the enforcement of retained ownership.
(7) If third parties take up steps to pledge or to otherwise dispose of the retained goods, the buyer shall immediately notify them about TRiooo’s property rights and inform TRiooo in order to enable TRiooo to seek a court order which enjoins such garnishment or execution. If the third party is unable to reimburse TRiooo’s judicial and extrajudicial costs in connection with these legal steps, the buyer is liable for it.
(8) TRiooo shall release on demand of the buyer the retained goods or corresponding claims if its value exceeds the value of the claims being secured by more than 50%. It is to TRiooo’s decision to release those parts of the retained goods suitable for it.
(9) If TRiooo withdraws from contract due to a breach of contract by the buyer – in particular due to default of payment – TRiooo is entitled to claim the enforcement of retained ownership.§ 10 Miscellaneous Clauses
(1) Any dispute arising under, out of or relating to this contract shall be referred to and finally determined by the court at TRiooo’s legal domicile or at its discretion before the court at the buyer’s legal domicile. The court at TRiooo’s legal domicile has exclusive jurisdiction for all actions against TRiooo.
(2) This agreement shall be exclusively governed by and construed in accordance with German law. The Vienna Convention of the International Sale of Goods of 11 April 1980 (CISG) shall be inapplicable.
(3) If these Standard Terms and Conditions contain omissions the parties shall fill in deficiencies in mutual agreement by a clause, the economic intention of which is as close as possible to what the parties would have wanted on conclusion of the contract, if they had considered this point.
The personal data of the customer, in particular name, address, telephone number, bank data, which are necessary and necessary for the sole purpose of carrying out the contractual relationship, will be processed by TRiooo on the basis of legal rights