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general terms and conditions

of Gebr. Tuxhorn GmbH & Co KG – 33659 Bielefeld

§ 1 Validity of the GTC

These General Terms and Conditions (GTC) apply to the entire business relationship with our customers.
The customer acknowledges them for each contract and also for future transactions as always binding for him. Deviating agreements always require our written confirmation. The customer shall not assert its own terms and conditions of purchase. Such shall not become part of the contract either by our silence or by delivery.

(2) Our terms and conditions of delivery and payment shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law pursuant to § 310 BGB. Entrepreneurs in the sense of § 14 BGB (German Civil Code) are natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity when concluding the legal transaction.

§ 2 Conclusion of contract

1. our offers are always subject to change in every respect. We are only obligated in accordance with our written order confirmation.

Contracts must always be in writing in order to be valid. Amendments and supplements as well as the agreement to waive the written form requirement must also be made in writing.

§ 3 Delivery

(1) Timely delivery shall be subject to an undisturbed production process and the timely receipt of input material. If we are hindered in the timely fulfillment of the contract due to procurement, manufacturing or delivery disruptions for which we are not responsible – at our company or at other suppliers – an agreed delivery time shall be extended by the duration of the hindrance. The same applies to labor disputes, energy shortages and other comparable obstacles, such as technical disruptions, machine breakdowns or similar.

2. in the case of call-off or framework agreements concluded without a specific term, production batch size and/or acceptance date, we shall be entitled to demand acceptance within 3 (three) weeks at the latest upon expiry of 3 (three) months after order confirmation. If the customer does not accept the goods even after setting a grace period of 2 (two) weeks, we may, at our discretion, withdraw from the contract, refuse delivery or claim damages for non-performance.

3. the customer may only withdraw from the contract if we are responsible for a delay in delivery other than that specified in sec. 1 and we do not deliver after expiry of the delivery period and despite a reasonable grace period in writing. The withdrawal must be made in writing if we do not fulfill within the grace period.

If it becomes impossible for us to fulfill the contract in whole or in part, we shall be released from our obligation to deliver. Partial payments will not be refunded if a corresponding partial quantity has been delivered.

5. from the disability according to par. 1 and the impossibility according to par. 3, we will notify the customer immediately.

6. if the customer is in default of payment for a previous delivery, we shall be entitled to withhold deliveries without being obliged to compensate for any damage incurred.

7. tools and devices made for the processing of customer orders shall be paid for by the customer on a pro rata basis. These remain our property.

8. our delivery quantities can deviate +/- 10% from the order quantities. Corresponding additional quantities must be accepted and paid for by the customer. No claims can be made in the event of delivery of a corresponding shortfall. For compliance with dimensions, the contractual agreements apply; in second place, the DIN standards. Dimensions and weights in offers are given to the best of our knowledge. Deviations that are due to production technology and do not have a significant influence on the condition and quality according to the contractually assumed use do not entitle the customer to assert claims for subsequent performance or damages or to rescind the contract. We are entitled to make partial deliveries.

9. in the event of material being provided by the customer, the customer shall be obliged to deliver the material to us at least 2 (two) weeks before the start of production, inspected, marked, taped and suitable for the machine and at its own expense. 2% material overdelivery are to be considered. If shortages occur in material provided by the customer, which require multiple setups of the machines or technical changes to the product hinder production, we are entitled to charge the customer for corresponding additional expenses.

10. if a technical acceptance has been agreed, the customer shall carry it out immediately at its own expense. If acceptance is not effected even after expiry of a reasonable grace period, we reserve the rights pursuant to sec. 2 sentence 2. In this case, the goods shall also be deemed to have been accepted from a technical point of view after expiry of the grace period. We are also entitled to ship the goods or store them at the customer’s expense.

Return shipments shall only be accepted by us after written consent or consent by telephone and must be made free domicile.

§ 4 Prices

1. if, in the case of call-off or forward orders, only part of the agreed quantity is accepted within the agreed period, we shall be entitled, at our discretion, either to charge the price applicable to this batch size for the part delivered or to deliver and charge for the quantity not yet called off.

2. if the order has technical peculiarities, which the customer did not point out despite knowledge and which were not recognizable for us at the time of the submission of the offer, and if additional costs arise as a result, which are technically mandatory, we will immediately point this out to the customer and reserve the right to charge the additional costs incurred to the customer.

3. in view of possible material price fluctuations on the market, we reserve the right to adjust prices. Insofar as prices for imported goods are based on the exchange rate of the agreed leading currency on the date of the offer, we reserve the right, in the event of changes in the relevant leading currency, to adjust and charge prices in accordance with the exchange rate applicable on the date of delivery.

4. in case of small orders below 50,00 € net value of goods, we take the liberty to additionally charge a minimum quantity surcharge in the amount of 15,00 €.

§ 5 Payments

1. our invoices are payable within 30 (thirty) days from the date of invoice, at the latest from the date of shipment. For payments within 14 (fourteen) days we grant 2 (two) percent discount. For development services, 30% is due when the order is placed, 40% when the first sample is delivered, and 30% when the order is completed.

2. one-time costs, such as one-time order costs, are charged directly after receipt of the order. Costs for product-related production aids and equipment shall always be paid in advance without discount.

3. in the event of default in payment by the customer, we shall be entitled to charge interest at a rate of 8 percentage points above the respective base interest rate p.a.. We reserve the right to prove and claim higher damages caused by delay. Default of payment occurs automatically after the expiration of 30 days according to sec. 1 without the need for a reminder.

4. we expressly reserve the right to refuse checks or bills of exchange. Acceptance is only on account of performance.

5. in the event of serious breaches of contract which justify a total default and for which the customer is responsible, e.g. non-redemption of checks, default in payment of at least 14 (fourteen) days, insolvency or insolvency, we may declare the entire existing claims arising from the business relationship immediately due and payable. In such a case, we shall be entitled to demand the immediate return of unpaid goods, to provide our services only against advance payment or provision of an unconditional, unlimited and directly enforceable bank guarantee of a credit institution approved in Germany as a customs and tax guarantor and to refuse further performance of the contract and, if applicable, the framework contract.

(6) We shall always be entitled, despite any provision of the customer to the contrary, to set off payments first against the customer’s oldest debt.

7. the customer may only assert a right of retention if its counterclaim is based on the same contractual relationship. The customer is only entitled to a set-off if we have acknowledged the counterclaim, if it is undisputed or if it has been legally established.

§ 6 Retention of title

(1) The goods shall remain our property until payment of all claims, including future claims, arising from our business relationship with the customer. This also includes contingent receivables.

2. the processing or transformation of the delivered goods by the customer is always carried out for us. In the event that the goods subject to retention of title are combined or mixed within the meaning of Sections 947, 948 of the German Civil Code (BGB) with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other combined or mixed items at the time of combination or mixing. If the combination or mixing is carried out in such a way that the customer’s item is to be regarded as the main item within the meaning of §§ 947, 948 of the German Civil Code (BGB), it shall be deemed to have been agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold such co-ownership or sole ownership in trust for us free of charge. In all other respects, the same shall apply to the item created by processing, combining or mixing as to the purchased item delivered under reservation.

3. the customer may only sell the reserved goods in the ordinary course of business. He shall not be entitled to make any other dispositions, in particular to transfer by way of security or to pledge the goods.

(4) The customer hereby assigns to us its claims from the resale of the goods subject to retention of title in the amount, including all ancillary rights, corresponding to the final invoice amount, including value added tax, of our claims, irrespective of whether the purchased item has been resold without or after processing.

5. in the event that the customer’s claims from the resale are included in a current account, the customer hereby already assigns to us its claim from the current account against its customer. The assignment shall be made in the amount of the final invoice amount including value added tax of our claim.

6. the customer is entitled to collect the claims assigned to us until revoked. We are always entitled to disclose the assignment and to collect the claim. Assignment or pledging of these claims by the customer is only permitted with our written consent. In the event that our security interests are impaired, e.g. in the event of default in payment, insolvency or inability to pay, the customer shall, at our request, notify the debtors of the assignment in writing, provide us with, submit or send us all information required for collection. For this purpose, the customer shall, if necessary, grant us access to and inspection of its documents in this regard.

7. in the event of a not merely insignificant breach of contract on the part of the customer, in particular in the event of the existence of the circumstances set out above. Para. 6 p. 3, we are entitled to withdraw from the contract in accordance with §§ 323,324 BGB. Upon our request, the customer shall grant us access to the goods subject to retention of title still in his possession, send us a detailed list of the goods, separate the goods and surrender them to us.

8. if the realizable value of our securities exceeds the amount of the claims to be secured by more than 10%, we shall release the securities at our discretion at the customer’s request.

9. the customer shall notify us immediately in writing of any access by third parties to the goods subject to retention of title or to the claims assigned to us and shall assist us in any way in intervening.

10. the costs for the fulfillment of the aforementioned obligations to cooperate in the pursuit of all rights arising from the retention of title as well as all uses made for the purpose of preserving and storing the goods shall be borne by the customer.

§ 7 Packaging and shipping

1. delivery is made ex works in our packaging or in packaging provided by the customer free of charge. Packing is done according to professional and commercial aspects. In the case of provision of packaging, we do not assume any liability for any damage caused by defective packaging.

2. costs for special packaging and replacement packaging shall be borne by the customer.

3. delivery is generally FCA (according to Incoterms 2010). From a net value of goods in the amount of € 1,000.00, delivery is DDP (free domicile, domestic deliveries).

§ 8 Risk assumption

(1) The risk of accidental loss and accidental deterioration of the goods shall pass upon handover, in case of shipment upon delivery of the goods to the forwarding agent, carrier or any other person or institution designated to carry out the shipment.

2. if the shipment is delayed for reasons for which the customer is responsible or if the customer is in default of acceptance, the risk shall pass to the customer on the day the goods are made available.

3) For any returns by the customer, sec. 1 accordingly.

4. transport insurance must always be taken out by the customer at his own expense.

§ 9 Workpiece-related models and manufacturing equipment

1. if the customer provides models or production equipment, these shall be sent to us free of charge. We may demand that the customer retrieve such equipment at any time; if he does not comply with such a request within 3 months, we shall be entitled to return it to him at his expense. The costs of maintenance, modification and replacement of its equipment shall be borne by the Purchaser.

The customer shall be liable for the technically correct design and the execution of the equipment ensuring the production purpose; however, we shall be entitled to make changes due to production engineering. In the absence of a special agreement, we are not obliged to check the conformity of the equipment provided with enclosed drawings or samples.

Insofar as workpiece-related models or production equipment are manufactured or procured by us on behalf of the customer, we shall invoice costs for this. Unless the full costs have been charged, the Purchaser shall also bear the residual costs if he does not take delivery of the number of units envisaged by him at the time of conclusion of the contract. Models and production equipment shall remain our property; they shall be used exclusively for deliveries to the Purchaser as long as the Purchaser essentially fulfills its acceptance and payment obligations towards us. If three years have passed since the last delivery, we are not obligated to further storage. If, in deviation from this, it is agreed that the Purchaser shall become the owner of the equipment, ownership shall pass to the Purchaser upon payment of the purchase price. The handover of the facilities is replaced by our obligation to keep them. The custody relationship may be terminated by the Purchaser no earlier than 2 years after the transfer of ownership, unless otherwise agreed.

4. all models and production equipment shall be treated by us with the care which we are accustomed to apply in our own affairs. At the request of the customer, we are obliged to insure his equipment at his expense. Claims for compensation of consequential damages are excluded.

If deliveries are made according to drawings or other information provided by the purchaser and if this infringes the industrial property rights of third parties, the purchaser shall indemnify us against all claims. Our drawings and documents handed over to the purchaser as well as our suggestions for the advantageous design and manufacture of the components may not be passed on to third parties and may be reclaimed by us at any time. The customer may only assert claims against us based on copyright or industrial property rights with regard to models and production equipment sent in or produced or procured on his behalf if he has informed us of the existence of such rights.

6. special agreements are required when using disposable models (for example, made of polystyrene foam).

In all other respects, § 3 para. 8 accordingly.

§ 10 Warranty and liability

1. the goods are produced and delivered according to the respective agreed quality guidelines.

2. our deliveries are to be checked for correctness upon receipt. The customer guarantees incoming goods inspection according to AQL. Obvious defects can only be objected to in writing within two weeks after receipt of the goods. Otherwise, the assertion of defect rights is excluded. Timely dispatch of the notification shall be sufficient to meet the deadline. Otherwise, § 377 HGB remains unaffected.

3. if the verification of functionality by means of a separate test has not been agreed in an individual contract, we shall only be liable for compliance with the agreed quality guidelines of our manufacturing specifications after visual inspection.

4. defect rights are excluded if the customer or a third party has made changes to the delivered goods, unless the customer proves in connection with the notification of the defect that the changes were not the cause of the defect. Claims due to defects are also excluded if the customer does not immediately comply with our request to return the rejected item.

(5) In the event of a justified complaint, we shall remedy the defects at our discretion either by rectifying the defect free of charge (elimination of the defect) or by supplying a replacement (delivery of a defect-free item). In this case, we shall bear the costs required for subsequent performance, such as transport, travel, labor and material costs. Two opportunities for subsequent performance are agreed. If the second repair or replacement fails, the customer may, at his option, reduce the purchase price or withdraw from the contract.

6. the return of the rejected goods to us must be made in professional packaging. With regard to the bearing of costs, par. 5.

7. the customer shall only be entitled to remedy the defects himself and to demand reimbursement of the expenses required for this from us after prior written agreement with us.

8. the rectification of defects is excluded, if there is no evidence of a defect in accordance with § 377 HGB as well as para. 2 corresponding written notice of defect is available. Any rectification carried out nevertheless shall be without warranty.

9. if the rectification carried out is defective, the customer shall notify us of this in writing, in the case of obvious defects within 2 (two) weeks of receipt of the rectified goods at the latest, and in the case of non-obvious defects within one year. Otherwise, the assertion of further warranty claims is excluded. Timely dispatch of the notification shall be sufficient to meet the deadline. Otherwise, § 377 HGB remains unaffected.

(10) The original warranty periods shall neither be suspended nor shall they start anew by rectification of the delivered goods.

§ 11 Exclusion and limitation of liability

1. claims for damages or reimbursement of expenses by the customer – irrespective of the legal grounds – are excluded, unless the damage is based on an intentional or grossly negligent breach of duty or on the breach of an essential contractual obligation by us, our legal representatives or our vicarious agents. Material contractual obligations are those whose fulfillment makes the proper performance of the contract possible in the first place, in particular our obligation to deliver the goods to be manufactured, if applicable, including the handover of the goods and the provision of ownership and possession thereof.

2. the customer’s claims for damages shall be limited to the foreseeable damages typical for the contract, insofar as we, our legal representatives or vicarious agents are charged with simple negligence.

3. the exclusion or limitation of liability pursuant to para. 1 and 2 shall not apply to claims arising from product liability. Furthermore, they do not apply to damages resulting from injury to life, body or health of the customer, which are based on a negligent breach of duty by us or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents. They shall also not apply if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item.

§ 12 Limitation

1. claims for defects shall become time-barred 2 years after delivery of the goods supplied by us to our customer.

2. the statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, body and health which are based on an intentional or negligent breach of duty by the user.

3. insofar as the law pursuant to § 438 para. 1 No. 2 BGB (buildings and things for buildings), § 479 para. 1 BGB (right of recourse) and § 634a para. 1 BGB (German Civil Code) (construction defects) prescribes longer periods, these periods shall apply.

4. the original warranty periods shall neither be suspended nor shall they start anew by rectification of the delivered goods.

§13 Industrial property rights

In the case of goods manufactured according to the customer’s specifications, we shall not be liable in the internal relationship with the customer for the infringement of third-party property rights. We reserve the right of recourse against the customer. This shall also apply if we have participated in the development or have developed the goods according to the customer’s specifications. Industrial property rights to our goods, in particular trademark and patent rights, shall always remain our property. The customer shall refrain from acts of infringement and shall always report such acts of infringement by third parties for our sanction.

§ 14 Preservation of validity

Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The content of the contract shall otherwise be governed by the statutory provisions. Insofar as no statutory provisions have supplementary effect, the wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that intended by the invalid provision.

§ 15 Applicable law, place of performance, place of jurisdiction

(1) 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.2. Place of performance for delivery and payment is Bielefeld.

3. the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Bielefeld.

4. in case of doubt, the German version of these GTCs shall always prevail.