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Terms of Service

 

General terms of sale, business, delivery and payment for entrepreneurs and legal entities under public law as well as special funds under public law of TRIUS Vertrieb GmbH & Co. KG, represented by TRIUS GmbH, represented by the managing directors Hubert Dierselhuis and Kai Böckmann, Gildestrasse 2, 49477 Ibbenbüren

 

1. Scope
(1) These terms and conditions - in the version valid at the time of the order - apply to all offers and contractual relationships for goods, deliveries and other services of TRIUS Vertrieb GmbH (hereinafter referred to as TRIUS or seller). Deviating terms and conditions of the customer are only effective if they are expressly confirmed in writing.

(2) The general terms and conditions also apply to all future business relationships, even if they are not expressly agreed again.

(3) These terms and conditions are deemed to have been accepted at the latest upon receipt of the goods or services. Other terms of business or purchase do not become part of the contract, even if TRIUS does not expressly contradict them.

(4) These conditions apply only to persons who, when concluding the contract, are exercising their commercial or independent professional activity (entrepreneurs) and to legal entities under public law and special funds under public law.

2. Offer and conclusion of contract
(1) The seller's offers are subject to change and non-binding. Declarations of acceptance, all orders as well as additions, changes and ancillary agreements, in particular with regard to certain properties, require written or telex confirmation from the seller in order to be legally effective.

(2) Drawings, illustrations, dimensions, weights or other performance data are only binding if this has been expressly agreed in writing.

(3) The sales employees of the seller are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract. The written form requirement cannot be effectively waived by verbal agreement.

3. Prices
(1) Unless otherwise stated, the seller is bound to the prices contained in its offers for 10 days from their date. Otherwise, the prices stated in the seller's order confirmation plus the respective statutory sales tax are decisive. Additional deliveries and services will be charged separately.

(2) Unless otherwise agreed, the prices are ex warehouse Ibbenbüren including customary packaging. If the goods are sent to a different location at the buyer's request, the resulting costs for transport and transport insurance will be charged additionally. From a goods value of € 750.00, TRIUS will assume the costs for transport and insurance. This does not apply to bulky goods, the shipping costs of which the parties to the purchase contract make an individual agreement about.

4. Transfer of risk / shipping
(1) The risk passes to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the seller's warehouse for the purpose of dispatch.

(2) The choice of the shipping method is made by the buyer. If this is not expressly determined by him, the selection will be made at his own discretion.

(3) The seller takes out transport insurance before dispatching the goods. The buyer must immediately check the delivery for transport damage and notify the seller and the transport company of any damage without delay, and draw up a written damage report. The seller uses the damage report to process the claim with the transport insurance company. The benefits from the transport insurance benefit the buyer. The seller is entitled to offset against his own claims against the buyer.

(4) When the acceptance default occurs, the risk of accidental deterioration and accidental loss is transferred to the buyer. This also applies if the shipment is delayed at the buyer's request. Then the risk passes to him with the notification of readiness for dispatch.

5. Retention of Title
(1) Until all claims (including all current account balance claims) to which the seller is entitled against the buyer for any legal reason now or in the future, the seller shall be granted the following securities, which she will release upon request of her choice, insofar as she is entitled to Value exceeds the claims sustainably by more than 20%.

(2) The goods remain the property of the seller. Processing or transformation is always carried out for the seller as the manufacturer, but without any obligation on her part. If the seller's (co-) ownership expires through connection, it is already agreed that the buyer's (co-) ownership of the unitary item shall pass to the seller in proportion to the value (invoice value). The buyer keeps the (co-) property of the seller free of charge. Goods to which the seller has (co-) ownership are referred to below as reserved goods.

(3) The buyer is entitled to process and sell the reserved goods in the ordinary course of business, as long as he is not in default. Pledges or collateral assignments are inadmissible. As a precaution, the buyer hereby assigns to the seller in full the claims arising from the resale or any other legal reason (insurance, tort) with regard to the goods subject to retention of title (including all balance claims from current account). The seller revocably authorizes him to collect the claims assigned to the seller for his account in his own name. This authorization to collect can only be revoked if the buyer does not properly meet his payment obligations.

(4) If third parties access the goods subject to retention of title, in particular seizures, the buyer will point out the property of the seller and notify them immediately so that the seller can enforce its property rights. If the third party is unable to reimburse the seller for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable for them.

(5) If the buyer acts in breach of contract - in particular default of payment - the seller is entitled to withdraw from the contract and to demand return of the reserved goods.

(6) In the event of suspension of payment, application for or opening of insolvency proceedings, the right to resell, use or install the reserved goods and the authorization to collect the assigned claim expire.

6. Payment
(1) Unless otherwise agreed, the seller's invoices are payable without deduction 30 days after the invoice has been issued. Discounts are only granted in individually agreed cases. Only the value of the goods without freight can be discounted. The seller is entitled to offset payments against older debts first, in spite of any contrary provisions of the buyer, and will inform the buyer about the type of offsetting that has taken place. If costs and interest have already arisen, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main claim.

(2) A payment is only deemed to have been made when the seller can dispose of the amount. If a check or bill of exchange is handed over, payment is only deemed to have been made when the check or bill of exchange is cashed.

(3) If the buyer is in default, the seller is entitled to demand from the relevant point in time interest in the amount of 8 percentage points above the base rate as lump-sum compensation. They are to be set lower if the buyer can prove a lower burden; proof of higher damage by the seller is permissible.

(4) If the seller becomes aware of circumstances which put the buyer's creditworthiness into question, in particular if he does not cash a check or suspends his payments, or if the seller becomes aware of other circumstances which call the buyer's creditworthiness into question, so is the seller is entitled to make the entire remaining debt due, even if it has accepted checks. In this case, the seller is also entitled to request advance payments or security.

(5) The buyer is only entitled to offset, withhold or reduce, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the buyer is also entitled to retention due to counterclaims from the same contractual relationship. (6) The seller is entitled to invoice its deliveries and services electronically.

7. Delivery and performance time, delay
(1) Delivery dates or periods, which can be agreed as binding or non-binding, must be in writing. Those that have been designated as expected delivery dates are non-binding.

(2) Delays in delivery and performance due to force majeure and due to events that not only temporarily make delivery more difficult or impossible for the seller - this includes in particular strikes, lockouts, official orders, etc., even if they are at the seller's suppliers or their sub-suppliers intervene - the seller is not responsible, even in the case of bindingly agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part that has not yet been fulfilled.

(3) If the hindrance lasts longer than three months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the part of the contract that has not yet been fulfilled. If the delivery time is extended or if the seller is released from its obligation, the buyer cannot derive any claims for damages from this. The seller can only invoke the circumstances mentioned if it notifies the buyer immediately.

(4) If the seller is responsible for the non-compliance with binding agreed deadlines and dates or is in default, the buyer is entitled to compensation for the delay, however a total of up to a maximum of 5% of the invoice value of the deliveries and services affected by the delay. Any further claims are excluded, unless the delay is based on at least gross negligence on the part of the seller. The above limitation does not apply to liability for injury to life, limb and health.

(5) The seller is entitled to partial deliveries and partial services at any time, unless the partial delivery or partial service is of no interest to the buyer.

(6) Compliance with the delivery and performance obligations of the seller requires the timely and proper fulfillment of the obligations of the buyer.

(7) If the buyer is in default of acceptance, the seller is entitled to demand compensation for the damage it has suffered.

8. Buyer's rights in the event of impossibility
If delivery is impossible, the buyer is entitled to claim damages in accordance with the statutory provisions. However, the buyer's claim for damages in addition to or instead of the performance and for reimbursement of wasted expenses is limited to 5% of the value of that part of the delivery which cannot be used due to the impossibility. Further claims by the buyer due to the impossibility of delivery are excluded. This limitation does not apply if there is liability in cases of intent, gross negligence or injury to life, limb or health. The buyer's right to withdraw from the contract remains unaffected.

9. Buyer's rights due to defects
(1) The products are delivered free of manufacturing and material defects; the deadline for asserting claims for defects is one year from delivery of the products.

(2) If the seller's operating or maintenance instructions are not followed, changes are made to the products, parts are exchanged or consumables are used that do not correspond to the original specifications, claims for defects in the products shall not apply if the buyer makes a corresponding substantiated claim that only one these circumstances caused the defect, has not been refuted.

(3) The buyer must notify the seller of any defects in writing immediately upon receipt of the delivery item. Defects that cannot be discovered within this period, even with careful inspection, must be reported to the seller in writing immediately after their discovery.

(4) In the event of a defect, the buyer will either send the defective part or device to the seller for repair and then return it at the seller's expense, or the buyer will keep the defective part or device ready for a service technician from the seller can make the necessary repairs. (Rework).

(5) If the improvement fails after a reasonable period, the buyer can choose to either demand a reduction in the remuneration or withdraw from the contract.

(6) Liability for normal wear and tear is excluded.

(7) Claims due to defects are only available to the direct buyer and are not transferable.

10. Liability
(1) Claims for damages are excluded regardless of the type of breach of duty, including unlawful acts, unless there is intentional or grossly negligent action.

(2) In the event of a breach of essential contractual obligations, the seller is liable for any negligence, but only up to the amount of the foreseeable damage. Claims for lost profit, saved expenses, claims for damages from third parties as well as other indirect and consequential damage cannot be demanded, unless a quality feature guaranteed by the seller is intended to protect the buyer against such damage.

(3) The limitations and exclusions of liability in paragraphs 1 and 2 do not apply to claims that have arisen due to fraudulent behavior on the part of the seller, as well as liability for guaranteed characteristics, for claims under the Product Liability Act and damage from injury to life, the Body or health.

(4) Insofar as the seller's liability is excluded or limited, this also applies to employees, workers, representatives and vicarious agents of the seller.

11. Applicable law, place of jurisdiction, severability
(1) The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between TRIUS and the buyer. The provisions of the UN sales law do not apply.

(2) Insofar as the buyer is a merchant, legal entity under public law or a special fund under public law, Ibbenbüren is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

(3) Should a provision in these terms and conditions or a provision in the context of other agreements be or become ineffective, this shall not affect the validity of all other provisions or agreements.