General TERMS OF PAYMENT and DELIVERY

§1    General

1. The following conditions apply to all our offers, sales, 
   Deliveries and services become part of the contract. They do not apply if our contractual partner is a private person and does not act professionally or commercially. They also apply to all future business relationships, even if they are not expressly agreed again.

2. We hereby expressly object to any deviating or supplementary general terms and conditions of the buyer. They also do not apply if the buyer has based his order or other declaration on them.

§2    offers and orders

1. Our offers are non-binding unless they are designated as binding in writing. An effective contract therefore only comes about through our order confirmation or the delivery of the goods.

2. Dimensions, weights, illustrations, drawings and other documents that are part of our non-binding offers remain our property and are only approximate. They can only become a binding part of the contract if we have expressly confirmed them in writing.

§3    Doubtful solvency

1. If, after the conclusion of the contract, we become aware of circumstances that justify doubts about the solvency of the buyer, we can make further deliveries dependent on advance payment of the goods by the buyer. We can set the buyer a reasonable deadline for the advance payment of the goods and withdraw from the contract if we do not receive the advance payment on time; the buyer can provide security in the form of a bank guarantee instead of paying in advance. If we have already delivered the goods, the purchase price is due immediately without deduction, regardless of agreed payment periods.

2. Doubts about the solvency of the buyer are justified, among other things, if an application has been made to open insolvency proceedings against his assets or if he does not make payments to us or third parties on time.

§4    Prices

1. Our prices apply "ex works" unless otherwise agreed with the buyer. The packaging costs are not included in the price.

2. Statutory value added tax is not included in our prices and is shown separately on the invoice at the rate applicable on the day of invoicing.

3. If there are more than 6 months between the date of conclusion of the contract and the date of delivery, without this being due to a delay in delivery for which we are responsible, and if our valid prices have changed during this time, we can replace the agreed purchase price with the price valid on the day of delivery request the valid list price for delivery. We will send the buyer a correspondingly amended order confirmation before delivery. In this case, the buyer can withdraw from his order for the goods for which the price has increased. He must resign at the latest 
   declare in writing on the 5th working day after receipt of the changed order confirmation.

§5    delivery time

1. All stated delivery dates are non-binding and are only agreed as approximate unless we have expressly designated them as binding. In the case of non-binding delivery dates, delivery within 14 days of the specified delivery time is still considered to be on time.

2. If we are culpably unable to meet an expressly agreed deadline or are in default for other reasons, the buyer must grant us a reasonable grace period. After this period of grace has expired without result, the buyer is entitled to withdraw from the contract.

3. If the performance is temporarily impossible or considerably more difficult for us due to force majeure or other extraordinary circumstances for which we are not responsible, the agreed delivery time shall be extended by the duration of the impediment to performance. The same applies to a statutory deadline or a deadline set by the buyer for the provision of services, in particular for grace periods in the event of default.

4. The buyer is not entitled to withdraw from the contract or to claim damages before the delivery time or performance period extended in accordance with paragraph 3 has expired. If the impediment to performance lasts longer than 4 weeks, both the buyer and we are entitled to withdraw if the contract has not yet been implemented. If the buyer is contractually or legally entitled (e.g. due to loss of interest) to withdraw without setting a grace period, this right remains unaffected.

5. In the event of a delay in delivery, unless it is due to intent or gross negligence, claims for damages of any kind are excluded.

§6    Shipment

1. Shipping is at the expense of the buyer. The risk passes to him when the goods are loaded, even if carriage paid delivery has been agreed and/or the shipment is made with our own vehicles. We are not obliged to take out transport insurance.

2. Unless otherwise expressly agreed in writing, we are entitled to make partial deliveries to a reasonable extent, which will be invoiced individually.

§7    payment

1. Unless otherwise agreed, our invoices are payable within 30 days of the invoice date without deduction.

2. The buyer is also in default without a reminder from us if he does not pay the purchase price within 5 days after the due date and receipt of the invoice or an equivalent payment schedule.

3. If the buyer is in arrears with a payment, all his payment obligations from the business relationship with us - including those for which bills of exchange have been given - become due immediately. In this case, we are entitled to demand interest at the statutory rate from the relevant point in time. The proof of a higher damage by the seller remains reserved.

4. Bills of exchange will only be accepted on account of performance after prior agreement and if they can be discounted without granting a discount. Payments by check or bill of exchange are only accepted on account of performance. The purchase price claim expires only after the bill of exchange has been fully redeemed. Bill of exchange and discount charges are calculated separately and are to be paid immediately without deduction.

5.  The buyer is only entitled to offset, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, have been recognized by the seller or are undisputed. The buyer is only authorized to exercise a right of retention if his counterclaim is based on the same purchase contract.

§8    Warranty/Liability

1. The buyer must examine the received goods for completeness, transport damage, obvious defects, condition and their properties. Obvious defects must be reported to us in writing by the buyer within 1 week of delivery of the contractual item.

2. We are not obliged to provide a guarantee if the buyer has not reported an obvious defect in writing in good time. If there is a defect in the goods for which we are responsible and the buyer complained in writing in good time, we are obliged to supplementary performance - excluding the buyer's rights to withdraw from the contract or reduce the purchase price - unless we are unable to do so due to the statutory regulation to refuse supplementary performance. The buyer must grant us a reasonable period of time for supplementary performance for each individual defect.

3. Subsequent performance can be carried out at the discretion of the buyer by eliminating the defect or delivering new goods. We are entitled to refuse the type of supplementary performance chosen by the buyer if it is associated with disproportionate costs. During the subsequent performance, the reduction of the purchase price or the withdrawal from the contract by the buyer are excluded. A subsequent improvement is deemed to have failed after the second unsuccessful attempt. If the supplementary performance has failed or if the seller has refused the supplementary performance altogether, the buyer can either demand a reduction in the purchase price (reduction) or declare withdrawal from the contract.

4. The buyer can only assert claims for damages under the following conditions because of the defect if the subsequent performance has failed or the subsequent performance has been refused by us. The right of the buyer to assert further claims for damages under the following conditions remains unaffected.

5. We are fully liable in accordance with the statutory provisions for intentional or grossly negligent breaches of duty and for damage resulting from injury to life, limb or health. Otherwise, we are only liable if the breached contractual obligation is clearly of essential importance for achieving the purpose of the contract, and only to a limited extent up to the amount of the typically foreseeable damage.

6. The limitation of liability according to paragraph 5 applies accordingly to other than contractual claims for damages, in particular claims from tort, with the exception of claims under the Product Liability Act. It also applies in favor of our employees, workers, employees, representatives and vicarious agents.

7. Insofar as we have given a quality and/or durability guarantee for the goods or parts thereof, we are also liable under this guarantee. However, we are only liable for damage that is based on the lack of the guaranteed quality or durability, but does not occur directly on the goods, if the risk of such damage is clearly covered by the quality and durability guarantee.

8. We are also liable for damage caused by simple negligence, insofar as this negligence relates to the breach of such contractual obligations, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, we are only liable if the damage is typically associated with the contract and is foreseeable. For the rest, we are not liable for simple negligent violations of secondary obligations that are not essential to the contract. The limitations of liability contained in §7 also apply insofar as the liability for the legal representatives, executive employees and other vicarious agents of the seller is affected.

9. Any further liability is excluded regardless of the legal nature of the asserted claim. Insofar as the seller's liability is excluded or limited, this also applies to the personal liability of his employees, workers, employees, representatives and vicarious agents.

§9    retention of title

1. We reserve ownership of the goods (reserved goods) until all payments from the purchase contract have been received. The delivered goods only become the property of the buyer when he has fulfilled all his obligations from the business relationship, including ancillary claims, claims for damages and the cashing of checks and bills of exchange. In the case of the check/bill of exchange procedure, the retention of title in all of the forms listed here does not expire when the check is paid, but only when the bill of exchange is honoured.

2. The buyer must inform us immediately in writing of any access by third parties, in particular of enforcement measures and other impairments to his property. The buyer has to compensate us for all damages and costs arising from a breach of this obligation and from necessary measures to protect against access by third parties.

3. If the buyer does not meet his payment obligation despite a reminder from us, we can demand the return of the reserved goods still in his ownership without prior setting a deadline. The buyer is responsible for all applicable freight costs. The seizure of the reserved item by us always constitutes a withdrawal from the contract. After retention of the reserved goods, we are authorized to use them. The proceeds from the sale will be offset against our outstanding claims.

§10 Proprietary and Copyright

• The entrepreneur reserves his right of ownership and copyright to cost estimates, drafts, drawings and calculations.
  They may not be used, duplicated or made accessible to third parties without his consent. If the order is not placed, they must be returned immediately.

§11 confidentiality

• Unless expressly agreed otherwise in writing, the information provided to the entrepreneur in connection with orders is not considered confidential.

§12 Place of fulfillment

• The place of performance for payments is Vreden, for our goods deliveries the place of dispatch

§13 Severability Clause

• Changes or additions to the contract or these General Terms and Conditions must be made in writing to be effective. If a provision of these general terms of delivery and payment is or becomes invalid or unenforceable, this does not affect the validity of the rest of the general terms of delivery and payment.

§14 Jurisdiction and Applicable Law

1. The law of the Federal Republic of Germany applies exclusively to the contractual relationship between the buyer and us, even if the buyer has his place of residence or business abroad. The application of the uniform law on the international purchase of movable property and the law on the conclusion of international sales contracts for movable property is excluded.

2. The buyer is not entitled to assign claims from the purchase contract without the consent of the seller.

3. If the buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties - including actions on bills of exchange and checks - is Münster/Westphalia. However, we are also entitled to sue the buyer at his general place of jurisdiction.

 

Tenwinkel GmbH & Co. KG
Concrete Counterweights 
Max-Planck-Strasse 31 
48691 Vreden  
Tel: 0 25 64 / 39 49 38 -0 
Fax:0 25 64 / 39 49 38 -99
Limited partnership, registered office Vreden, AG Coesfeld HR A 4531 
Personally liable partner: Tenwinkel GmbH, AG Coesfeld HR B 7727 
Managing Directors: Markus Tenwinkel & Stephen Tenwinkel