GENERAL TERMS AND CONDITIONS
1. Inclusion, Exclusion
- These General Terms and Conditions apply for the entire business relationship with the buyer or other commissioning or consuming individual or a contractual partner. They apply to all offers from Total. Our Terms and Conditions also apply with exclusivity where the Customer refers to his own terms and conditions of business in the course of the acceptance of the offer or in the order confirmation or at any other point in time, except where these have been expressly recognized in writing. Our General Terms and Conditions also apply when we affect delivery without reserve in spite of opposing or different Terms and Conditions of the Customer, unless we have clearly accepted such Conditions.
- Insofar as these general Terms and Conditions have been incorporated into a preceding contract, these Terms and Conditions also apply for pending and future transactions even where these Terms and Conditions are not mentioned or not expressly mentioned or referred to in later contracts.
- These conditions only apply for companies, corporate bodies under public law and special funds under public law.
2. Terms of Delivery
- The reference point for delivery deadlines begins with the submission of the order confirmation but, nevertheless, not before the Customer’s production of possibly necessary documents, permits, releases and/or clarifications of all further questions which might be vital for the execution neither of the order, nor before the deposit of any pre-arranged down-payment, except as otherwise agreed.
- A correct and punctual self-delivery is reserved, whereas Total shall inform the Customer immediately about an unavailability of the goods and, in case of a cancellation, shall immediately repay the respective compensation.
- If no express, firmly established time of delivery is provided, delivery deadlines are subject to approximate calculation.
- The delivery deadline is met when, up to the time of its expiration, notice of readiness to ship is given or the item of delivery has left the works.
- If a non-binding delivery deadline is not met, Total will be in default with regard to the delivery if the delivery is not accomplished within four weeks from submission of a written notice on the part of the Customer to remind the shipper of the delivery due.
- The delivery deadline will be extended in the event of labour disturbances, in particular strikes and lock-outs, as well as in the event of unforeseen impediments which lie outside Total’s realm of influence, e.g. work disruptions, delays in the supply of substantial materials, insofar as such impediments have a demonstrable and considerable impact on the delivery of the item of shipment. This provision also applies where third-party delivery services are involved. The delivery deadline is extended by a period of time equivalent to the duration of the impediments in question.
Total likewise assumes no responsibility for such circumstances as those aforementioned when they occur during or after an instance of default. Total will inform the Customer of the commencement and resolution of such impediments as promptly as is possible.
- Partial shipments are permissible within the given delivery schedule insofar as they are acceptable for the Customer and result in no complications with regard to use.
- Where the Customer has the option of requesting on call a partial shipment of a greater order he is obligated to accept the shipment approximately by the due date of the monthly instalment for that month, except where otherwise agreed.
3. Shipment, Acceptance, Passage of Risk
- Unless otherwise provided, delivery occurs ex Warehouse, excluding customs, insurance, delivery costs or the like without any deductions.
- The Customer is obligated to accept the item of delivery.
- If the Customer remains in default with regard to the acceptance of the goods for more than 14 days from the submittal of notice of readiness to ship, Total may withdraw from the contract or demand compensation for non-performance following the expiration of an established extension of the deadline. The establishment of an extended deadline is dispensable when the Customer has genuinely or definitively refused acceptance or where it is obvious that the Customer is not in a position to pay the purchase price within this period of time or when there is a similarly serious reason at hand.
- As far as no other agreements have been made, the risk passes on to the Customer, when the goods have been forwarded to a carrier or freight forwarder, however at the latest when the goods have left our premises. This also applies, in case Total has undertaken additional services e.g. loading, transportation or unloading. In the event of discrepancies in weight or quantity for which neither Total nor the Customer are responsible, the release weight or quantity as determined by Total is controlling.
- Payment is to be made in full, without deductions and without bank charges for Total, within 30 days from the date of invoice, unless the parties have agreed to a different payment schedule. Timely payment only occurs when Total can access the submitted sum of money in the proper amount from its account on the due date. Discounts and rebates will only be granted on the basis of special arrangement.
- Where payment is in default, penalty interest will be imposed in the amount of 8 % over the basis interest rate pursuant to § 288 BGB. It remains subject to liberty to give poof of a further damage caused by delay.
- The submission of bills of exchange is permissible only with the prior consent of Total. Discount and draft charges are to be carried by the Customer.
- A substantial diminution in the Customer’s financial position entitles Total, except as provided in all other rights as due, to complete any remaining shipping jobs only upon direct payment for each job.
Under these conditions, payment for services performed becomes due immediately. Total also reserves the right, in the alternative, to collect on accounts receivable which the Customer has ceded to Total as a means of settling accounts with the Customer or to demand the return of shipped goods in the Customer’s possession at the Customer’s expense.
- A compensation with or a retention due to claims of the Customer require a demand of such Customer which is either undisputed or determined without further legal recourse.
5. Reservation of Title
- Total reserves title to the item of delivery until the fulfillment of all claims which Total has against the Customer deriving from the overall business transaction.
- The processing or modification of the products on the part of the Customer shall always be performed on behalf of Total. Where the items of delivery are processed with other products which are not of Total manufacture, Total shall acquire common title to the resulting good in proportion as the value of the delivered item is to the value of the other processed item at the time of processing. The Customer acquires no claims against Total through the act of processing and is obligated to preserve the reserved product with care and the custom of trade as is appropriate. If Total does not acquire common title in connection with several items, the Customer directly transfers the appropriate share of title in accordance with this provision.
- If the items of delivery are inseparably combined with other products which are not of Total manufacture, Total shall acquire common title to the resulting good in proportion as the value of the delivered item is to the value of the other combined items. The Customer preserves common title for Total.
- In the event of the disposition of the newly manufactured product which incorporates items delivered by Total, the Customer transfers all claims to the purchase price to Total as security. Total shall accept the rights to these claims.
- Where the disposition of unprocessed goods is involved, the Customer transfers all claims with regard to the disposition, including collateral rights, to Total up to the amount required as security. Total shall accept the rights to these claims.
- Total commits itself to release securities in its possession upon the Customer’s demand when the value of the security exceeds the outstanding claims which it is intended to secure by more than 10 %.
- The enforcement of reservation of title as well as the requisition of the item of delivery on the part of Total shall not represent withdrawal from the contract unless it is expressly declared to be so.
- The Customer may neither pledge items of delivery nor commit such items to security. In the event of requisition as well as attachment or other dispositions carried out by third parties, the Customer shall inform Total immediately thereof and make all information and documents available to Total which are required to protect Total’s rights. Law enforcement officers and other third parties shall be informed of Total’s property.
- With regard to all claims from which the Customer has withdrawn for the purpose of collateral, the Customer remains entitled to lay claim thereto even after withdrawal. Irrespectively, Total remains entitled to collect the claims itself, yet will not do so long as the Customer fulfills its payment obligations in an orderly manner and does not come into default. As soon as the Customer defaults, Total may demand that the Customer notify Total of outstanding claims and their corresponding debtors, provide all necessary evidence for collection, submit the pertinent documents, and inform the debtors of the transfer of claims.
- The item delivered by Total has the agreed upon properties when it meets the product description. The product description is not a guaranty for those properties unless otherwise expressly provided.
The Customer shall, immediately, as far as is possible, in the regular course of business, examine the goods and provide Total with written notice of any discovered defects within five business days from the time of receipt, giving full particulars regarding examination, number of random tests and defect description. Such defects, which are incapable of being discovered through regular inspection shall be made known to Total in writing within three business days after the Customer gains knowledge of the defects, or should have discovered the defects.
Upon notice of substantive defect, Total is then obligated to redress the defect when so requested by the Customer. Such redress is accomplished through Total’s delivery of non-defective products to replace those defective products received. Should attempts at redress fail upon two occasions, the Customer’s sole remedy shall be to withdraw from the contract.
- Where the Customer discovers a defect during production, the Customer shall notify Total immediately. Total shall not be held liable for such damages which result from the end-use of a defective product undertaken with knowledge of the product’s defectiveness, except as otherwise provided in 7.1 of these General Terms and Conditions.
- A limitation period of one year from the date provided by law shall apply to all warranty claims.
- Total is fully liable according to the product liability law in cases of an explicit acceptance of guarantee or an exercise risk as well as in connection with deliberate and grossly negligent breach of duty. Also, we are fully liable in cases of deliberate or negligent violation of life, body or health.
- Where a break occurs involving contractual obligations (except the cases mentioned in paragraph 1) which are not substantial contractual obligations (i.e. obligations, which must be fulfilled in order to execute an order properly and on the observance of which the Customer can regularly rely), Total’s liability shall be limited to foreseeable damages which may arise within the usual course of events. To this extent, liability for acts of negligence also exists. This limitation of liability also applies to any harm or injury caused by independent contractors, subcontractors, employees of Total and others Total involves in the fulfilment of its contractual obligations
8. Application, Testing
- Product usage instructions and other product information provided by Total are merely general guidelines. Due to the variety of purposes to which individual products may be applied and to the special factors which may be present at any given time, the Customer is obligated to perform his own testing.
- The risk of production success is born by the Customer. The scope of Total’s liability is governed solely by these General Terms and Conditions.
9. Price Deduction
- The Customer may only make deductions from Total’s claims to payment where such action is undisputed or established by law.
- The price quotations provided in price lists or other declarations made by Total are subject to change, unless the buyer has entered into a special agreement concerning delivery pricing.
- The Customer is obliged to treat all information he obtains from Total, regardless of how such information is being embodied or represented, as confidential.
- Should the Customer, however, be obliged to pass on confidential information due to a legal regulation or a valid regulatory action, he has to inform Total about such obligation and must keep the extent of the forwarded information as low as possible.
- Such obligation ends 5 years after termination of the contract or in case the information has become public through no fault of the Customer.
- The Customer is obliged to impose such obligation on any third party that he appoints in connection with the contract.
12. Trade Mark Rights
- Any images, drawings, drafts, software and other documents of Total are only to be used in connection with this contract. Duplications, digitalisations or the forwarding to a third party as well as any utilization outside this contract is prohibited. At the termination of this contractual relationship, all documentation is immediately to be returned to Total.
- All industrial property rights shall remain with Total. A licensing of such property rights requires a separate agreement.
- The Customer keeps Total indemnified from all claims of third parties, which are based on an execution of specifications of the Customer.
13. Proof of Export, Turnover Tax
- In case a customer who is based outside the Federal Republic of Germany, or his representative picks up goods or forwards or dispatches them to a third country, the Customer has to provide Total with the proof of export required for tax reasons. If such proof is not provided, the Customer has to pay the turnover tax applicable for delivery within the Federal Republic of Germany, as far as Total can be claimed by tax exemption for export deliveries.
- When shipping goods from the Federal Republic of Germany to other EU member states, Total must inform the Customer prior to delivery about its turnover tax identification number under which it transacts its profit and income taxation within the EU. Otherwise, the Customer has to pay Total's due statutory turnover tax in addition to the agreed purchase price for any delivery made by Total.
14. Place of Performance, Governing Law and Jurisdiction
- The place of performance is Neunkirchen-Seelscheid in the Federal Republic of Germany.
- The German Substantive Law shall be applied on the legal relationship between the parties.
- Jurisdiction for all disputes arising from the contract shall be determined at the option of Total either by Total’s principal place of business or by the relevant factors concerning jurisdiction over the Customer.
15. Closing Provisions
- Side agreements, guaranties, alterations or supplements to the contract are only valid when in writing. This provision also applies to a potential waiver of this formal requirement.
- Should individual provisions of these General Terms and Conditions or other contractual agreements prove completely or partially invalid, this has no effect on the validity of the remaining provisions. The contracting parties shall agree upon other valid provisions which approach the economic objectives and interests of the parties as closely as possible to replace the invalid provisions.