General Terms and Conditions
of Delivery and Payment
of Tröster Maschinenbau GmbH
Section 1 – Scope of Application
- These terms of delivery and payment apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) German Civil Code [Bürgerliches Gesetzbuch – “BGB”]. We will only recognise any terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.
- These terms of delivery and payment shall also apply to any and all future transactions with the customer, insofar as these are legal transactions of a related nature.
Section 2 – Offer and Conclusion of Contract
- Insofar as an order is to be regarded as an offer in accordance with Section 145 BGB, we may accept it within two weeks.
- Orders become binding for Tröster Maschinenbau GmbH only after the customer order has been confirmed in writing. This shall also apply to supplements, amendments or subsidiary agreements.
- We consider any double orders placed by telephone or in writing, which are not recognized in time, as separate and independent orders and must insist on their fulfilment in case of a cancellation behind time.
Section 5 – Dimensional and Weight Data
- Information on dimensions, weights, properties, payloads, capacity, durability, etc. as well as corresponding illustrations (e.g. drawings and illustrations) are only approximate unless the usability for the purpose intended by the contract requires exact conformity. They do not constitute not guaranteed characteristics, but descriptions or designations of the delivery or service. Deviations customary in trade and deviations which result from legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the purpose intended by the contract.
Section 8 – Plans and Documents
- Plans and technical documents which are handed over to the customer before the conclusion of the contract and which can be used to manufacture the delivery item or individual parts shall remain our exclusive property. Without our consent, the buyer may not use, copy, reproduce, transfer or disclose them to third parties.
- Conversely, plans or technical documents which are handed over to us by the customer before or after conclusion of the contract and which can be used to manufacture the delivery item or individual parts shall remain the exclusive property of the customer.
Section 9 – Retention of Title
- We reserve title to the goods until they have been paid for in full.
- The customer is entitled to dispose of the delivery item in the ordinary course of business. Pledging or transfer by way of security is not permitted. The claims arising from the resale or any other legal transaction with regard to the delivery item shall be assigned to us by the customer in full by way of security. We accept the assignment. The customer is revocably entitled to collect the claim assigned to us on its own account in its own name. If we make use of our security rights in person, the customer must state the name and address of the third party and make all notifications necessary for the assertion of our rights. Should the value of the security exceed our total claim by more than 10%, we shall be obliged to reassign it at the request of the customer.
- If the goods are combined or mixed with other goods or processed in any other way, we shall also acquire ownership until the goods have been paid for in full or – if the combination or mixing consists of materials from several owners or if the value of the processed goods is higher than the value of the goods subject to retention of title – we shall acquire co-ownership (ownership in fractional shares) of the newly created goods in the ratio of the value of the goods subject to retention of title to the value of the newly created goods. In the event that a third party and not our selling customer acquires ownership, the customer transfers, already now, its future ownership or – in the above-mentioned proportion – co-ownership of the newly created object or its other rights resulting from the processing in proportion to the security to Tröster Maschinenbau GmbH.
- Furthermore, the customer shall be obliged to keep the goods in good condition, to store them appropriately and well protected, and to insure them; the customer shall keep our goods separate from its own products and mark them as our property until payment has been made in full.
Section 10 – Transport – Transfer of Risk
- If the contract does not specify the type of sale, the delivery item shall be deemed to have been sold “ex works”.
- With the handing over of the goods to the carrier (post office, railway, parcel service, forwarding agent, etc…), the purchase contract is considered fulfilled and the risk is transferred to the customer. In individual cases, we determine the mode of dispatch, the dispatch route and, if necessary, the forwarding agent or carrier for the goods ordered from us.
- Should it seem to us advantageous and economically sensible in the context of rapid processing, we will make partial deliveries. This is particularly the case when delivery times for existing products vary considerably, so that our customers receive their goods as quickly as possible.
Section 11 – Further Transport and Storage
- When transporting a fan or bearing unit, it must be ensured that no transport damage can occur to the bearing. The following should be noted in this respect:
- Removal of the impeller during transport and appropriate securing of the bearing unit.
- If the impeller cannot be removed, it must be supported for transport in order to avoid transport damage to the bearings (due to mass forces).
If the transport is not secured, the bearing may suffer damage for which we assume no liability.
- To ensure that the goods function properly, care must be taken to ensure that the bearing is not exposed to direct weather conditions during operation and storage, i.e. if the bearing is operated outdoors, it must be protected by a roof.
- We assume no liability for improper handling.
- Please observe our regulations and technical data sheets in order to use our goods correctly and to avoid complaints.
Section 13 – Liability for Damages Based on Fault
- Our liability for damages, regardless of the legal reason, in particular based on impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this section 13 to the extent that our fault is a decisive factor of our liability.
- In the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, we must exclude any liability insofar as it does not constitute a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects that impair its functionality or usability by more than an insignificant degree, as well as obligations to provide advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life or limb of the customer’s personnel or to protect the customer’s property from considerable damage.
- Insofar as we are liable on the merits of damages, such liability shall be 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 using customary care. Besides, indirect damages and consequential damages resulting from defects of the delivery item shall only be eligible for compensation if such damages are typically to be expected when the delivery item is used in accordance with its intended purpose.
- The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees, and other vicarious agents.
- 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 done free of charge and to the exclusion of any liability.
- The limitations of this section 13 do not apply to our liability on the merits of intentional behaviour, due to injury to life, body or health, according to the Product Liability Act or for guaranteed characteristics
Section 14 – Take-back Guarantee and Consignments on Approval
- The return shall only be possible if this has been generally agreed prior to the placement of the order and the conditions have been laid down in writing. Custom-made products according to customer requirements are generally excluded from return and exchange. Our liability for defects remains unaffected.
Section 15 – Data Storage
- We store and process the personal and company-related data of our customers to the extent necessary for business purposes within the permissible framework of the German Federal Data Protection Act (Section 26 Bundesdatenschutzgesetz – “BDSG”). We hereby give you notice of this fact.
Section 16 – Place of Jurisdiction
- Place of performance and exclusive place of jurisdiction for any and all disputes arising from this contract shall be our place of business, unless otherwise stated in the order confirmation. The validity of the International Convention on the International Sale of Goods (CISG) is excluded.
Section 17 – Legal Validity
Should any of our terms and conditions of sale, delivery and payment not be legally effective, in whole or in part, this shall not affect the legal validity of the remaining terms and conditions and the entire legal transaction.