Terms and Conditions Tihl GmbH
Stand May 2018
Our general terms and conditions apply exclusively. General terms and conditions of the buyer only apply if we have expressly agreed to them.
2. Quality information
The quality specified in our service description comprehensively and conclusively defines the properties of our delivery. In particular, public statements made by us, the manufacturer, their assistants or third parties (e.g. presentations of product properties in public) do not contain any descriptions of the delivery item that supplement or change these specifications.
3. Delivery time
The delivery time is agreed upon without obligation upon conclusion of the contract. 10 days after the non-binding delivery date has been exceeded, the buyer can request us in writing to deliver within a reasonable period of time; we shall be in default upon receipt of the request.
4. Shipping Costs
The buyer bears the shipping costs from Hamburg, unless they exceed a reasonable ratio to the value of the delivery item.
5. Notification of Defects
The buyer is obliged to notify us in writing of obvious defects immediately after receipt of the goods; to meet the deadline, sending the notification within the deadline is sufficient. The defects are to be described in as much detail as possible for the buyer.
If the buyer reports a defect which, according to our inspection, does not exist and if the buyer was aware of the non-existence of the defect at the time of notification or was wrong about this as a result of negligence, the buyer must compensate us for the damage incurred. The buyer is entitled to prove that the reported defect does exist. Within the framework of the above provisions, we are particularly entitled to demand reimbursement from the buyer for the expenses we have incurred, for example for examining the item or for the repairs requested by the buyer.
We are liable in cases of intent or gross negligence or a representative or vicarious agent as well as culpably caused injury to life, limb or health in accordance with
legal regulations. For the rest, we are only liable under the Product Liability Act, due to culpable breach of essential contractual obligations or if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the delivery item. However, the claim for damages for the culpable violation of essential contractual obligations is limited to the foreseeable damage typical of the contract, unless another of the cases listed in page 1 or 2 is given at the same time. The provisions of the above para. 1 apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), regardless of the legal reason, in particular due to defects, the breach of obligations arising from the contractual relationship or tort. They also apply to claims for reimbursement of futile expenses. A change in the burden of proof to the detriment of the buyer is not associated with the above regulations.
If the non-compliance with deadlines is due to force majeure, e.g. mobilization, war, riots, or similar events for which we are not responsible, e.g. strike or lockout, the deadlines are extended
Deadlines around the times during which the aforementioned event or its effects last. In other cases of delay, our liability for damages in addition to performance and for damages in lieu of performance (including reimbursement of wasted expenses) is limited to a total of 50% of the value of the delivery. Further claims of the buyer are excluded – even after the expiry of a deadline for performance set by us. The limitation does not apply in the event of a culpable violation of essential contractual obligations. However, the claim for damages for the culpable violation of essential contractual obligations is limited to the foreseeable damage typical of the contract. The buyer’s right to withdraw from the contract remains unaffected. A change in the burden of proof to the detriment of the buyer is not associated with the above regulations. If delivery is impossible, we are only liable in cases of intent or gross negligence or for our representatives or vicarious agents, as well as culpably caused injury to life, limb or health in accordance with the statutory provisions. The buyer can only withdraw from the contract within the framework of the statutory provisions if we are responsible for a breach of duty. In the event of a breach of duty, the buyer must declare within a reasonable period of time after being requested to do so by us whether he is withdrawing from the contract due to the breach of duty or whether he insists on the delivery. In the case of defects, however, the statutory provisions on withdrawal apply.
In any case, we have the right to choose between remedying the defect and delivering a new product. The buyer’s request for supplementary performance must be made in writing. We must be granted a period of 30 days for supplementary performance. If the delivery is to be repaired, the repair is only deemed to have failed after the second unsuccessful attempt. If the supplementary performance fails, the buyer has the right to reduce the price or withdraw from the contract. The legal cases of the dispensability of setting a deadline remain unaffected. The application of §§ 478, 479 BGB remains unaffected.
10. Offsetting / prohibition of assignment
The buyer can only offset claims that are undisputed or legally established. The buyer may only assign claims from the contract with our consent.
11. Partial Deliveries
Partial deliveries are permitted as long as they are reasonable for the buyer.
The remuneration is due in full upon acceptance. The buyer is in default without further explanations from us 7 days after acceptance if he has not paid. In the event of the presence of defects
the buyer is not entitled to a right of retention if this is not in reasonable proportion to the defects and the expected costs of supplementary performance (in particular the elimination of defects). The
The buyer is not entitled to assert claims and rights due to defects if the buyer has not made the payments due and the amount due (including any payments made) is in reasonable proportion to the value of the defective services.
12. Retention of Title
The delivery item remains our property until all claims against the buyer arising from the business relationship have been settled. The buyer is permitted to process or transform the delivery item (“processing”). The processing is done for us. If the buyer does not acquire ownership of the delivery item, we agree with the buyer that the buyer has co-ownership of the delivery item in proportion to the value (gross invoice value) of the delivery item belonging to us to that of the other processed goods at the time of processing admits. The above sentence applies accordingly in the case of inseparable mixing or connection of the delivery item with goods that do not belong to us. Insofar as we acquire ownership or co-ownership, the buyer shall keep it for us with the diligence of a prudent businessman. In the event of the sale of the delivery item, the buyer hereby assigns his claim from the resale against his customer with all ancillary rights to us as security, without the need for any further special declarations. The assignment applies including any balance claims. However, the assignment only applies to the amount that corresponds to the price of the delivery item invoiced by us. The portion of the claim assigned to us is to be satisfied with priority. Until revoked, the buyer is authorized to collect the claims assigned to us. The purchaser will immediately pass on to us payments made on the assigned claims up to the amount of the secured claim. In the event of legitimate interests, in particular default in payment, cessation of payments, the opening of insolvency proceedings or justified indications of over-indebtedness or impending insolvency on the part of the buyer, we are entitled to revoke the buyer’s authorization to collect. In addition, we can, after prior warning, subject to a reasonable period of time, the security assignment
disclose, utilize the assigned claims and demand disclosure of the security assignment by the buyer to his customers. If a legitimate interest can be substantiated, the buyer must provide us with the information and documents required to assert our rights. During the existence of the retention of title, the buyer is prohibited from pledging or assignment as security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the buyer must notify us immediately. The resale of the delivery item is only permitted to resellers in the ordinary course of business and only under the conditions that the equivalent value of the delivery item is paid to the buyer. The buyer must also agree with his customers that the customer only acquires ownership with this payment. Insofar as the realizable value of all security rights that we are entitled to against the buyer, the amount of all
secured claims by more than 10%, we will release a corresponding part of the security rights at the request of the buyer. It is presumed that the requirements of the preceding sentence
are fulfilled if the estimated value of the securities to which we are entitled reaches or exceeds 150% of the value of the secured claims. We are entitled to choose between different security rights when releasing. In the event of breaches of duty on the part of the buyer, in particular default in payment, we are entitled, without setting a deadline, to demand the return of the delivery item and/or – if necessary after setting a deadline – to withdraw from the contract. The buyer is obliged to surrender. The demand for the return of the delivery item does not constitute a declaration of withdrawal on our part, unless this is expressly declared
14. Statute of Limitations
The limitation period for claims and rights due to defects in the deliveries – regardless of the legal reason – is one year. The limitation periods according to para. 1 also apply to all claims for damages against us in connection with the defect – regardless of the legal basis of the claim. The limitation periods according to para. 1 and para. 2 apply with the following proviso: a) The limitation periods generally do not apply in the case of intent or fraudulent concealment of a defect or if we have assumed a guarantee for the quality of the delivery item. b) The limitation periods for claims for damages also do not apply in the event of a grossly negligent breach of duty, in the case of a culpable breach of essential contractual obligations, in cases of culpably caused injury to life, limb or health or in the case of claims under the Product Liability Act. The limitation periods for claims for damages also apply to the reimbursement of wasted expenses. The limitation period begins for all claims with the delivery. The above regulations apply accordingly to claims for damages that are not related to a defect; for the statute of limitations, para. 1 Clause 1. A change in the burden of proof to the detriment of the client is not associated with the above regulations.
For all disputes arising from the contractual relationship, if the buyer is a merchant, a legal entity under public law or a special fund under public law, the complaint must be filed with the
court that is responsible for our registered office in Hamburg. We are also entitled to sue at the buyer’s headquarters.