General Terms and Conditions

General Terms and Conditions of Sale and Delivery

turbocut Jopp GmbH, Donsenhaug 4, 97616 Bad Neustadt (Edition 02/2021)

I. Determining Conditions, Exclusion of Application of Other Business Terms
Deliveries and services by the supplier are made solely on the basis of these General Terms and Conditions of Sale and Delivery. The supplier does not acknowledge any terms and conditions of the ordering party which are in opposition or are different or additional unless the supplier has explicitly agreed to their validity in writing. These General Terms and Conditions of Sale and Delivery shall also apply if the supplier carries out the delivery/service without reservation and with knowledge of the ordering party’s conditions which are in opposition to or are different or additional to these conditions of delivery. Agreements must be made in writing which is also complied with by means of e-mail or other forms of data telecommunication. These conditions shall also apply to all future contractual relationships with the supplier even if it is not explicitly agreed again that these conditions are applicable. They shall only apply towards entrepreneurs in the sense of § 14 and § 310, Subsection 1, German Civil Code (Bürgerliches Gesetzbuch – BGB).

II. Orders
Offers by the supplier are subject to confirmation. The order by the ordering party includes a binding offer. The supplier is entitled to accept this offer towards the ordering party by sending a written order confirmation or by dispatching the delivery/rendering the service. The order confirmation includes the relevant conditions for the contractual relationship to render the delivery/service.

III. Prices, Price Adjustments, Handling Charge
1. Prices are per unit, ex works and in Euro and, unless otherwise stated in the order confirmation, excluding turnover tax, packing, carriage, postage and insurance.
2. The supplier’s prices are based on the production costs (material prices, wages/salaries, energy costs) applicable at the time of the order confirmation. If such production costs change, the supplier is entitled to adjust the prices should there be a period of more than two months between the order confirmation and the rendering of the delivery/service. The prices are adjusted proportionately to the increase in costs.
3. An additional handling charge in the amount of Euro 10.00 will be made for orders with a net invoice value of less than Euro 50.00.
4. All public duties (taxes, fees, customs, etc.) which are incurred due to or in connection with the delivery/service outside the territory of the Federal Republic of Germany shall be borne by the ordering party.

IV. Payment
1. Unless otherwise stated in the order confirmation, the purchase price/remuneration is due for payment immediately upon delivery/rendering of the service without any deduction in the currency stated in the order confirmation. The deduction of a discount must be made in a separate written agreement. The execution of delivery is decisive for punctual payment.
2. If deliveries go abroad, payment must be made by arrangement but always without discount.
3. If it becomes apparent after conclusion of the agreement that the claim for payment is at risk owing to the ordering party’s lack of adequate financial capacity, the supplier shall be able to refuse performance towards the ordering party and to set a reasonable deadline within which the ordering party must make full payment or provide corresponding security before the delivery is carried out. If the ordering party refuses to do so or the deadline expires without result, the supplier is entitled to withdraw from the agreement and demand damages according to statutory provisions as far as the ordering party has to take the responsibility. If the delivery/service has already been made, the corresponding invoice amount shall become due immediately without taking the agreed payment conditions into consideration.
4. Cheques will only be accepted on account of performance and on condition that they may be discounted. They shall not be considered as payment until they are redeemed. Discount charges will be calculated from the due date of the invoice and must be settled immediately by the ordering party.
5. The supplier is entitled to balance all claims and liabilities relating to the business relationship.
6. Where the supplier has indisputably supplied goods which are partially defect, the ordering party is nevertheless obliged to pay for the non defective part, unless partial delivery is of no use to him.
7. Without the prior consent of the supplier, the ordering party may only offset payment against counter-claims which have been determined by final judgement or are not disputed.
8. Insofar as no conflicting payment terms have been agreed, default shall occur 14 days after the invoice is issued. In the event of default, the supplier is entitled to charge default interest in the amount of the interest customary among banks, but at least in the amount of 8.5% above the respective base rate of the European Central Bank.

V. Dispatch, Packing and Transfer of Risk
1. Unless otherwise stated in the order confirmation, delivery/service is agreed “ex works”. Dispatch shall be made for the account and on behalf of the ordering party. The risk shall be transferred to the ordering party when the goods are handed over to the forwarder/carrier, but at the latest when the goods leave the factory. The above shall also apply if carriage paid delivery has been agreed or if partial deliveries are made or the supplier has assumed the shipping costs.
2. The INCOTERMS 2000 international rules in the version valid at the time of the respective order confirmation and, should the latter not exist, in the version valid when the delivery/service takes place shall apply to deliveries which leave the territory of the Federal Republic of Germany.
3. Goods which are notified as being ready for dispatch as scheduled are to be taken over by the ordering party immediately. Otherwise the supplier is entitled to choose at its own discretion whether to dispatch or store them at the ordering party’s expense and risk.
4. If dispatch is delayed as a result of circumstances for which the ordering party is responsible, the risk shall be transferred to the ordering party on the day when the goods are ready for dispatch.
5. Insofar as the supplier is obliged under the packaging regulation to take back the packaging used for transport/sale, the ordering party shall bear the costs for the return transport and appropriate recycling. For packaging that is not returned, the ordering party shall assume the obligation to recycle it in accordance with the packaging regulation.
6. If requested the shipment of the goods can be insured at the ordering party’s expense.

VI. Reservation of Title
1. Goods supplied shall remain the supplier’s property until all claims under the business relationship are fulfilled in their entirety.
2. The inclusion of individual claims in an unsettled account as well as the drawing of a balance and its acknowledgement shall not affect the reservation of title. The receipt of the equivalent value by the supplier shall be deemed to be fulfilment.
3. The ordering party is entitled to sell the reserved goods in the normal course of business, but the ordering party is not permitted to pledge them or assign them as security. The ordering party shall be obliged to secure the supplier’s rights when reselling the reserved goods on credit.
4. In addition the ordering party hereby assigns to the supplier as security all claims and rights arising from the resale or a permitted lease of the goods subject to retention of title to which the supplier is entitled. The supplier accepts this assignment. At the supplier's request, the ordering party shall notify the debtors of the assignment and provide the information on the assigned claims which is required to collect such claims.
5. The ordering party must inform the supplier immediately of enforcement measures taken by third parties in the goods or in the previously assigned claims by handing over documentation required for any intervention. This also applies to infringements of any other kind.
6. If the conditions of Section IV.3 are met, the ordering party shall be obliged to surrender the goods after expiry of the deadline.
7. Insofar as the applicable law of the country in which the delivered goods are located does not permit reservation of title in accordance with the above provisions, but allows the supplier to retain other, comparable security interests in the delivered goods, the supplier shall be entitled to enforce such other security interests. The ordering party is obliged to take all necessary measures at its own expense to enable and maintain the retention of title or other security rights of the supplier.

VII. Delivery Dates, Partial Deliveries, Excess and Short Deliveries
1. Specifications of delivery dates in the order confirmation occur within the scope of possibilities (self-delivery) and shall only apply subject to the timely and proper fulfilment of all obligations by the ordering party (e.g. submission of documentation, releases, down payments, etc.). Agreed time periods begin with the day the supplier sends written confirmation of an order. They are considered to be met when the goods have left the factory at the agreed time or the notification that the goods are ready for dispatch is on time.
2. Partial deliveries are permitted within reason. They are invoiced separately.
3. Production-related excess or short deliveries are permitted in the case of special designs within a tolerance of 10 % of the call-off order quantity. The total price will be adjusted accordingly.

VIII. Delayed Delivery, Impossibility
1. In case of delayed delivery the ordering party is entitled to withdraw from the contract only if the supplier is responsible for the delivery date not being met and the ordering party has set a reasonable grace period with a warning of refusal.
2. In the event of delivery being delayed by one of the circumstances set forth in Section XIII. below or as a result of any action or omission on the part of the ordering party, an extension of the delivery period will be granted which is appropriate for the circumstances (duration of the disruption and a reasonable start-up time).

IX. Warranty
1. The quality of the goods depends on the arrangements made between the partners. If no arrangements have been made, the state of the art as defined by the DIN standards and terms of reference which are current at the particular time shall be deemed an integral part of these terms and conditions of delivery.
2. Any material defects which occur from unsuitable or improper use, faulty assembly and/or operation by the ordering party or third parties, normal wear and tear, faulty or negligent handling, are excluded as well as the consequences of unsuitable modifications or repairs undertaken by the ordering party or third parties without the supplier’s consent. The same shall apply to defects which only insignificantly reduce the value of the goods or their suitability for the intended use.
3. Claims for material defects shall become statute-barred after 12 months following delivery if the ordering party is an entrepreneur.
4. In the event of a justified notification of defects within the time limit, the supplier shall, at its discretion and according to the statutory provisions, either remedy the defective goods or supply a faultless replacement. Notification of defects due to weight and quantity must be reported within 14 days after receipt of goods.
5. In the event of the supplier failing to meet these obligations or failing to do so in accordance with the terms of the contract within a reasonable period of time, the ordering party may set the supplier a final deadline in writing within which the supplier must fulfil the obligations. After this period expires without result, the ordering party may demand reduction of the price, withdraw from the contract or have the necessary subsequent rectification carried out by itself or a third party after prior consultation with the supplier. There shall be no reimbursement of costs by the supplier if the expenses increase in an inappropriate way.
6. The ordering party has statutory rights of recourse against the supplier only insofar as the ordering party has not made any agreements with its customer which go beyond the statutory claims for defects.

X. Exclusion of Liability
1. Unless specified otherwise below, any other or more extensive claims by the ordering party against the supplier are excluded. This shall in particular apply to claims for damages for a breach of duty arising from the contractual obligations and from tort. The supplier is therefore not liable for any damage that has not occurred to the delivered goods themselves. In particular, the supplier is not liable for loss of profit or other financial losses suffered by the ordering party.
2. The limitations of liability indicated above do not apply in the case of specific intent, gross negligence on the part of the supplier’s legal representatives or senior employees, and in the event of culpable violation of significant contractual obligations. In the event of culpable violation of significant contractual obligations, the supplier is liable other than in cases of specific intent or gross negligence on the part of the supplier’s legal representatives or senior employees – only for standard contractual loss which is reasonably foreseeable.
3. The limitation of liability is also not applicable for cases in which liability is assumed under the Product Liability Act for personal injury or material damage to privately used objects in the event of defects in the delivered goods. It is also not applicable in case of injury to life, limb or health or in the absence of promised characteristics, if and insofar as the object of the promise was to cover the ordering party against damage that did not occur to the delivered goods themselves.
4. Insofar as the supplier’s liability is excluded or limited, this is also applicable to the personal liability of the supplier’s employees, workers, legal representatives and vicarious agents.
5. The statutory provisions relating to burden of proof are not affected by this.
6. The execution of special contractually assumed quality and output controls does not simultaneously imply the assumption of the obligation to ensure traffic safety. The supplier assumes that the ordering party will for its part undertake the inspections necessary for the fulfilment of the obligation to ensure road safety.

XI. Confidentiality
1. The contractual partners undertake to treat as business secrets all commercial and technical details which are not in the public domain and which become known to them in the course of the business relationship.
2. Documents, drawings, data, data processing information, software, materials or objects (samples, models etc.) which the contractual partners make available to each other for the execution of an order remain the property of the contractual partner and may not be handed over or otherwise made accessible to unauthorized third parties. Reproduction of such items is only permitted within business requirements or in accordance with the provisions of copyright law.
3. Even after completion of the order the knowledge acquired from the documentation stated in Cipher 1 may not be further used or forwarded to third parties insofar as the preconditions of Cipher 1 still exist.

XII. Protective Rights
1. If deliveries/services are manufactured or modified or provided pursuant to information, drawings, designs or specifications provided by the ordering party, the supplier does not guarantee the appropriateness or suitability for the intended use of such products. The ordering party shall release the supplier from all liability claims in connection with the infringement of intellectual property rights by deliveries/services of such products (in particular but not exclusively patents, utility models, software and copyrights) and a defect in the products due to errors or omissions in such information, drawings, designs, specifications or instructions. 2. All industrial property rights, designs, samples, tools, drawings, models and similar materials used by the supplier in connection with deliveries/services remain the property of the supplier and shall be returned by the ordering party on request, treated confidentially and not used, copied or disclosed to any third party without the supplier’s prior written consent. The ordering party is not given any right or licence within any industrial property right. It only receives the right to use and sell the products on in its customary course of business.

XIII. Force Majeure
Force majeure, such as war, terrorism, natural disasters, pandemics and epidemics, fire, strikes and lockouts, riots, official measures, government sanctions, embargoes and other unforeseeable, unavoidable and serious events which cause a partial or complete stoppage of work and/or non fulfilment of the contractual obligations shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The contractual partners are obliged to give each other the necessary information without delay and within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.

XIV. Illustrations and Descriptions
Illustrations and descriptions are only binding insofar as modification of design model is not required due to new construction and improvements.

XV. Return of Goods
Return of goods free of defects is only possible after prior agreement with the supplier and with the return being free of charge for the supplier. Special designs are excluded from return. In any case a handling fee of 10 % of the value of the goods will be charged for the return. The bill of delivery and invoice must be attached to all returns in copy at least.

XVI. Place of Performance, Severability Clause, Place of Jurisdiction, Applicable Law
1. Unless otherwise stated in the order confirmation, the place of performance is the supplier’s principal place of business.
2. The invalidity of individual contractual provisions shall not affect the validity of these General Terms and Conditions of Sale and Delivery in other respects. The contractual partners are obliged to replace the invalid provision by a provision which comes as close as possible to the invalid provision in terms of economic success.
3. If the ordering party is an entrepreneur, the place of jurisdiction shall be the plaintiff's registered office or another competent court.
4. If the parties have not agreed otherwise, the laws of the Federal Republic of Germany apply to all contractual and business relationships between the supplier and the ordering party. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11th April 1980 is excluded.
5. All disputes in connection with deliveries/services leaving the territory of the Federal Republic of Germany and which arise from or are related to the contract or result from its validity shall be finally settled in accordance with the rules of arbitration of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V.). (DIS) by one or more arbitrators who are appointed pursuant to the above rules of arbitration while excluding the ordinary courts of law. The place of arbitration shall be Frankfurt am Main. The language of the proceedings shall be German. Applicable law applicable shall be the law of the Federal Republic of Germany.