Sale and Delivery Conditions
Of TAMPOPRINT® GmbH
- Our terms of sale apply exclusively; we do not recognise conditions of the customer that conflict with or differ from our sales conditions, unless we have expressly agreed in writing. Our terms of sale apply even if we are aware of conflicting or deviating sales conditions of the customer and still deliver to the customer without reservation.
- All agreements made between us and the customer for the execution of this contract shall be set down in writing in this contract.
- Our terms of sale apply only to companies within the meaning of § 310 para. 1 BGB.
- Quotation, Conclusion of Contract, Written Form
- Our offers are non-binding. Information to be made before the order as part of tenders, in particular on performance and other data items such as agreements are binding only if confirmed and reported by us in writing in the order confirmation. Contracts only come into being when we send our written confirmation. However, we reserve the right, in particular, in an emergency, even tacitly to accept orders addressed to us by immediate execution.
- For illustrations, drawings, calculations and other documents we reserve ownership and copyright. This also applies to written documents that are designated as „confidential“. Before passing on to third parties, the customer needs our expressed written consent.
- We reserve the right to insignificant and small design and form changes as long as the object of delivery is not altered in an unacceptable way for the buyer and/or decline the changes to technical evolution or equipment changes by us or our suppliers. Insignificant deviations from the licensed samples and materials are reserved.
- Unless the order confirmation provides otherwise, our prices are „ex works“ and exclusive packaging; this is billed separately.
- Prices agreed with us are binding if and to the extent that the agreed deliveries and services are made within four months of conclusion of the contract, unless we shall be responsible for any excessive delay. We may at our discretion after expiry of this period charge customers for increased costs of parts and/or labour or, if necessary, invoice on the basis of new price lists coming into effect in the intervening period. If the customer makes changes following conclusion of the contract, we can invoice the ensuing additional costs. This also applies to special procedures and adjustments and changes in work piece specifications or technology processes after the order is placed.
- VAT is not included in our prices; It will be shown at the statutory rate on the date of invoicing separately in the invoice.
- Terms of Payment, Maturity
- (8) The deduction of discount requires special written agreement.
- All payments must be made in cash (Euro) by wire transfer to one of our business accounts with no deduction for fees and charges. The currency risk is borne by the customer. Our sales representatives are not authorised to receive payments. The acceptance of money orders, bills of exchange or cheques takes place, as with their negotiation, as conditional payment. Incidental charges shall be borne by the customer.
- Our invoices are fundamental and, unless provided otherwise in the order confirmation, require payment in full within 30 calendar days from the invoice date. The following products and services specific maturity and partial payments shall apply:
- Service benefits are payable without deduction upon receipt of invoice.
- Consumer goods (spare parts, accessories, clichés, inks, pads, etc.) are to be paid upon receipt of invoice within 10 days.
- 30% of the payment owed is due for payment on placing of contract with contracts for work and services in the field of automated systems, building of special-purpose machines, ALFALAS laser systems and DMD industrial ink jet systems. A further 60% of the payment owed is due for payment after complete acceptance by the customer and a test run at our premises prior to delivery, the remaining 10% is due for payment 14 days after delivery (from the factory gate, at our discretion, at either Korntal-Muenchingen or Westerheim). Upon delay in acceptance by the customer (number VII, paragraph 4), the balance remaining is due for payment immediately on the onset of delay.
- If a customer defaults on payments, we are entitled to demand the applicable statutory default interest applicable to relations between merchants, the amount is currently 9% above the prevailing base rate. The right to claim further damages remains unaffected.
- If the customer is in default for more than 30 days, we are entitled to declare all amounts due from the entire business relationship as payable, including deferred payment and installment payment commitments and to recover the total balance. Regarding outstanding services we are entitled to a lien. Binding delivery times in the overall business relationship no longer exist.
- Incoming payments are first calculated on the incidental costs, then the interest, then claims for incidental services, and finally the oldest purchase price / wage charged, unless the customer specifies upon payment exactly which liability is being paid.
- The customer can only apply set-off rights if his counter-claims have been legally established, undisputed or recognized by us. He also has the right of retention insofar as his counter-claim is based on the same contractual relationship.
- Retention of title
- We retain ownership in items of the delivered items until receipt of all payments under the business relationship with the customer. We may re-possess the items delivered upon breach of contract by the customer, more particularly in the case of payment arrears. The seizure of the goods supplied by us always means a withdrawal from the contract. We are entitled to dispose of the goods recovered. The proceeds are deducted from the customer's liabilities – net of accumulated utilization costs.
- The customer is not entitled to sell on the goods delivered by us before transfer of ownership, unless he has given notification of a reseller. However, in case of resale, the customer already transfers all claims to us in the amount of the total invoice (including VAT) which arise from the resale to its customers or third parties, and regardless of whether the goods have been sold without or with further processing. He is obliged to inform us at any time and to provide information and confirmation regarding a resale of acquired claims and is thereby committed to the extent that we are required to realize the assigned claims in the area. We accept this assignment.
- The processing or transformation of the goods effected by the customer is always done for us. If the goods retained are processed with other items not belonging to us, we acquire ownership of the new object in proportion to the value of this object to the other processed goods at the time of processing. Applies with regard to the object created by processing as well as for the goods delivered under reserve.
- If the goods retained are processed with other items not belonging to us, we acquire ownership of the new object in proportion to the value of this object to the other processed goods at the time of processing. If the mixing is in such a way that the customer's item is regarded as the main object, it is agreed that the customer transfers proportionate ownership to us. The customer shall keep the sole ownership or co-ownership for us.
- The customer is obliged to treat the reserved goods with care, to properly store and insure them against fire, theft, water damage and vandalism at the new value. He already today forfeits his claim to the insurance benefits in the amount of the outstanding aggregate claim in our favour to us. We accept this assignment. He is obliged to prove to us at all times adequate insurance against such risks upon request.
- If maintenance and inspection work is required, the customer must carry this out at his own expense.
- In the event of third party seizure or other interventions, the customer must notify us immediately in writing so that these measures can be opposed. If the third party is not able to pay us the costs for the assertion of our conditional claims, whether in court (e.g. third party proceedings according to § 771 ZPO) or out of court, in full, the customer is liable for the loss incurred.
- We undertake to release the securities due to us at the customer's request, as the realizable value of our securities exceeds the secured claims arising from the business relationship by more than 10%; the choice of the collateral to our right.
- The scope of delivery is exclusively defined in the contract or order confirmation. Without explicit mention, printing inks and colour chemistry are not within the scope of delivery.
- If the delivery of special machines and equipment is agreed, we are liable in cases of non-compliance or non-existence of guaranteed qualities neither for damages nor delay, unless the order is marked as such. This exclusion is our responsibility attached to it that we demonstrate that compliance with the contractual commitments under the contract is either not feasible technically or economically under the contract. In these cases, we are entitled to refuse fulfilment.
- Our commitment to deliver is subject to the correct and timely delivery (if necessary incl. installation and commissioning and optimization) by our suppliers, unless the non-delivery is beyond our control. The customer will be informed immediately of the unavailability of the service. In this case we will refund any payments already paid immediately.
- Period of Delivery
- Information about the delivery period quoted are the expected delivery times. If we are hindered by force majeure or similar unavoidable events (e.g. strikes, traffic disruption) for the timely delivery, the agreed delivery dates or periods are appropriately adjusted. The customer will be informed of this. As a case of force majeure, shall also apply if the export of the agreed delivery after the contract is legally impermissible.
- Compliance with our delivery obligation requires the timely and proper fulfilment of the obligation of the customer. The defence of breach of contract is reserved. Delivery periods are appropriately adjusted if the customer does not fulfil obligations to cooperate in time, for example orders print samples or untimely notified information and instructions for the preparation and start-up, i.e. provides documentation upon request. The same applies if the customer later requests changes to the delivery item or demands or instructs changes to the version at a later date which cause overheads due to their dimensions. This also applies to changes in the specification of the parts to be machined or the technology.
- The beginning of our quoted delivery time assumes the clarification of all technical questions.
- If the customer is in default of acceptance or violates or is culpable of other obligations to cooperate, we are entitled to demand compensation for the resulting damage, including any additional expenses. Further claims or rights are reserved. Default of acceptance also applies in the case where obstacles out of or in the sphere of the customer (e.g. construction delays) lead to a limitation of the applicability of the delivered goods.
- If the conditions of VII.4. apply, the risk of accidental loss or accidental deterioration of the goods passes at the time, where he is in default of acceptance or payment.
- We are liable under the law, if the underlying sales contract is a firm deal in the sense of § 286 para. 2 No. 4 BGB or § 376 HGB. We are also liable under the statutory provisions if, as a consequence of any of delivery delay caused by us, the customer is entitled to assert that his interest in further performance of the contract has ceased to exist.
- We are also liable under the statutory provisions if the delay in delivery is a result of our willful or grossly negligent breach of contract; the fault of our representatives or vicarious agents is attributable to us. If the delivery delay is the result of our grossly negligent breach of contract, our liability is limited to the foreseeable, typically occurring damage.
- We shall also be liable under the statutory provisions, insofar as the delivery delay is not the culpable breach of a material contractual obligation; in this case, the damages shall be limited to the foreseeable, typically occurring damage.
- Moreover, we are not liable in the event of late delivery.
- The customer, in the case that we are in default, first make use of its rights resulting therefrom if he has granted us a grace period of at least three weeks in plant construction contracts where the installation and commissioning is carried out for our customers for at least one month.
- Further legal claims and rights of the customer remain reserved.
- Packaging and Shipment
- Shipment of equipment (standard pad printing machines, automated systems, special purpose machines, ALFALAS laser systems and DMD industrial inkjet systems) within Germany „ex works“ at the risk of the purchaser, unless stated in the order confirmation otherwise. This also applies if delivery „carriage paid“ is agreed.
- If the customer wishes, we will cover the delivery by transport insurance; this regard shall be borne by the customer.
- For delays in delivery due to shipping, we do not assume any liability, unless we are responsible for the delay.
- Boxes, loading containers and other packing material will be charged at cost price and will not be returned to us, unless there is a contractual or statutory provision to the contrary. In the latter case, they are to be returned free of charge to the customer.
- The risk of shipping damage is assumed by the customer. If we damage claims during transport arise against the shipper/ carrier we assign these claims only after full payment of the agreed purchase price plus all costs and expenses to the customer. The customer accepts the assignment.
- Accessories, spare parts, clichés, inks, pads, etc. we deliver „free house“. If the customer has delivery requests (special requests, express or the like), a shipping fee may be charged.
- Teaching and training of the customer is not due even if the installation of the system is agreed with the customer.
- For assembly, we will only be obliged if all structural and technical requirements for the installation of the equipment is available. The customer must indicate this in writing in advance of the agreed installation date and ensure free access, and provide at its expense the appropriate lifting and transport equipment within his business premises. We are not liable for his employees nor equipment in this regard. If these requirements upon delivery are not available and if a complete and flawless delivery is not possible or only with a significantly increased effort, we shall be entitled, to remove our assembly staff from the installation location and/or to claim the resulting additional staffing and equipment costs in addition. In such cases installation periods and deadlines for the preparation of operational readiness should be adjusted accordingly.
- In-house assistants and supervisors as well as a person responsible for the site must be available at the expense of the customer during the entire duration of assembly.
- Every machine is tested by us before shipment. The original material required for adjusting and testing is made available to us free of charge by the customer. As far as we are charged tariffs and/or freight charges for arrival and/or return of the original material required for testing, costs shall be reimbursed by the customer. We can use the original material provided for in the context of testing and sampling we are not obligated to return any outstanding amounts.
- Tools, Models
The tools, models, hardware and plans purchased or manufactured by us for completion of orders remain in our ownership (unless otherwise stated in writing in the order) including if they were manufactured according to specifications provided by the customer or the costs of purchase or manufacture have been paid wholly or in part by the customer.
- Industrial Property Rights, Patents
- We are not under a duty with customised machines manufactured on behalf of the customer (special-purpose machines), to examine whether patents or other industrial property rights of third parties are infringed by reason of the special manufacture. The customer shall indemnify us from and against all claims and shall reimburse us for reasonable legal costs where a claim in such cases is made against us by third parties on account of infringement of patents or other industrial property rights, unless there shall be no fault on the part of the customer.
- The customer is under a duty to observe the patent and industrial property rights employed within the scope of our manufacture and technology and neither to copy himself nor make available to third parties for copying our machines and their specifications and accessories.
- Reference Prints
If we make available in connection with the preparation of the operational readiness test prints as reference samples to the client for review and approval is given, the nature of which shall be deemed duly approved if the customer does not make complaints in writing within two weeks of receipt of claim. This only applies if we have made explicit reference to this deadline to the customer on forwarding the items.
- The customer's warranty claims presuppose that it is his obligation under § 377 HGB of inspection and complaint have been duly complied with. Upon violation the warranty is void. The customer is obliged to examine systems and/or parts and materials delivered and to commission machines immediately on receipt. If during this test or commissioning defects become obvious, they are to be notified to us in writing within eight days. Details of the faults are to be stated.
- The equipment we have supplied (standard and special machines) have been designed for single shift work.
- For machines from our standard range (standard equipment), we offer a 12 month period of warranty from the transfer of risk when used in single-shift operation; when used in multi-shift operation, the warranty period is shortened to 6 months from the transfer of risk. For special machines (semi- or fully automatic) we provide 12 months warranty from the passing of risk.
- Complaints must be made immediately in writing. We fulfil the warranty by way of subsequent performance to the extent that there is a fault in the subject matter of purchase. We have the right to choose between remedying faults and delivering new items free of faults or new manufacture of machines free of faults. We bear all expenditure necessary for the purposes of removal of faults, more particularly costs of transport, travelling expenses and the costs of labour and materials in the event of remedying defects, unless these are increased because the item has been taken to a location other than the place of performance. In the case of subsequent performance we will pay the necessary expenses up to the amount of the purchase price.
- If the subsequent performance fails twice, the customer is entitled to choose to demand withdrawal from the contract or a price reduction.
- We are liable under the statutory provisions if the customer makes a claim for damages based on intent or gross negligence, including intent or gross negligence of our representatives or agents. If we are accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
- We are liable under the statutory provisions if we culpably violate an essential contractual obligation; also in the case where the liability for damages is limited to the foreseeable, typically occurring damage.
- The liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- In addition, liability is excluded.
- Total liability
- Further liability for damages as provided in XIII. is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence in the contract, breach of duty or tort claims for property damage pursuant to § 823 BGB.
- The limitation in XIV.1. also applies if the customer, instead of a claim for compensation for damage, demands instead compensation for useless expenses.
- As far as the liability for damages against us is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and agents.
- Pictures and drawings
- Pictures and drawings of our machinery and equipment in the prospectus or other written documents are only for general illustration and are not technically binding. Dimensions and weights stated are approximate. Such documents are retained even when handing over our property and subject to our copyright.
- The customer is aware that the installation, stock plans and drawings of his local conditions are the basis for our order processing, design and production. If variations in on-site changes are necessary, the customer has to bear the additional costs.
- Final Provisions
- Unless stated in the order confirmation, our registered office (Muenchingen) for performance is place of fulfilment.
- If the customer is a merchant, the place of jurisdiction for all disputes resulting herefrom is Stuttgart. However, we are entitled to sue the customer's domicile.
- German law applies to all contracts concluded with us. The application of the CISG is excluded.
- Additional to the present conditions for automations and special machines our special terms and conditions apply for special engineering. In addition to these conditions, the general terms and conditions of the printing industry apply. In cases of internet orders our special terms for distance selling apply.
- If any of the above provisions be or become invalid, the remaining conditions shall remain unaffected.
Purchasing Specifications of TAMPOPRINT® GmbH
For all current and future orders and contracts the following conditions of purchase shall prevail exclusively. Conditions of the supplier shall only be effective if confirmed in writing by us. Conflicting terms and conditions are hereby expressly excluded. They will also not be recognised if we do not expressly object to them again after their receipt. The supplier recognizes the sole validity of our conditions of purchase with the acceptance, at the latest with the execution of the order, even if he refers to his own terms. The acceptance of deliveries and services or their payment does not constitute acceptance of the terms and conditions of the supplier.
Offers of the supplier are not binding and free of charge for us. Orders are only effective if made in writing or confirmed by us in writing. Verbal or telephone agreements are only valid if confirmed in writing. Each order must be confirmed immediately by stating the binding delivery time.
The agreed prices are fixed and are inclusive of all incidental expenses. They are free to delivery address. Changes due to subsequently occurring increases of any costs, taxes, etc., are excluded (with the exception of changes in the VAT).
The agreed delivery period must be observed. In particular, the reservation of timely delivery is excluded. In the case of exceeding the deadline the supplier is to set a reasonable grace period. Does he also not deliver within the prescribed period, we are entitled to either withdraw from the contract or to demand compensation in place of performance. This does not affect our right to compensation for damage caused by delay and, if necessary, payment of an agreed penalty. If we claim damages in lieu of performance, an additional agreement penalty is to be paid. If the supplier due to force majeure or events of equal standing such as strike cannot meet the delivery date, he must inform us of this immediately upon becoming aware of such event. In this case we are entitled to either extend the acceptance period or, if our interest is substantially reduced in the supply, we may wholly or partially withdraw from the contract and, where appropriate, claim damages. The supplier can not derive any claims from this. If the supplier in the event of force majeure withdraws from the contract, he owes us a contractual penalty amounting to 15 % of the net order value excl. VAT. The supplier retains the right to prove that no or a less damage was caused.
- Packaging and Shipment
Delivery are made free of charge to the delivery address. All transportation costs incl. packaging, insurance, among other things shall be borne by the supplier. The risk is not transferred to us before receipt of the goods. For each consignment on the date of shipment, a shipping notice with our order number, precise indication of the number of items, description of the goods and the individual weight or dimensions is to be delivered to us. Each shipment must be accompanied by a delivery note. All rail shipments must be sent to destination 70806 Kornwestheim. The supplier is liable for all damages, costs, demurrage, etc. caused by the failure to comply with this provision. Partial shipments are permitted only with written agreement; if there is no written agreement, we can refuse acceptance.
The supplier is obliged to supply only such products which comply with the current state of science and technology and have been subjected to a corresponding quality and function control by the supplier prior to shipping to us. The goods delivered by the supplier must be suitable for our planned deployment with respect to the materials used for their production methods and processes and these have to be in accordance to our specifications. If the supplier receives no specification from us, the general technical standards (e.g. DIN/ISO) are in place of the specification. If the supplier prior to conclusion of the contract has submitted samples, models or descriptions, the quality and product-specific properties of these samples, models or descriptions represent the minimum requirements relating to the products to be supplied by the supplier. In case of defects, we are entitled to the right to choose between rectification of defects and replacement delivery of defect-free goods. If we choose remedial measures, we can make these at the supplier's expense or commission these at the expense of the supplier if due to particular urgency is no longer possible to notify the supplier of the defect and the imminent loss and to give him even a short term of time to take remedial measures. If we exercise our right to replacement goods free of defects or a right of withdrawal, we prepare the defective goods available for collection at the expense and risk of the supplier. We are entitled to our statutory rights to compensation to the full extent. The warranty period for defects is 36 months, unless a longer period is dictated by law. Complaints are deemed valid if they are made in case of defects that are recognizable upon inspection of the goods upon receipt in accordance with § 377 HGB, within two weeks after delivery of the goods; for defects that are not recognizable in the context of such goods examination, the period of two weeks applies from discovery of defects.
- General liability provision
The supplier's liability is governed by the statutory provisions. We shall be liable to the supplier in accordance with the statutory provisions if the supplier makes a claim for damages based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents; if we are not blamed for intentional breach of contract, the liability for damages is limited to foreseeable, typically occurring damage. We shall be liable according to the statutory provisions insofar as we culpably violate a fundamental duty, which makes the proper execution of the contract possible (essential contractual obligation); the liability is limited to the foreseeable, typically occurring damage. The liability for culpable injury to life, limb or health remains unaffected.
- Transfer of ownership and assignment of claims
We are in agreement with the supplier that the title on ordered goods will pass to us with the notification of readiness for dispatch. The transfer shall be replaced by the supplier storing the ordered goods for us without charge. They are to be stored separately from other stocks. However, the risk of fire, theft or other loss or deterioration of the goods is borne by the supplier who has to insure against such risks until the time of the agreed transfer of risk. The supplier guarantees that no rights of third parties exist for the delivered goods. We do not recognise a prolonged or forwarded retention of title by the supplier. Assignments or pledges of claims against us is only permitted with our consent.
- Rights of third parties
The supplier assumes liability that the goods, designs, trade marks supplied by him are free of rights of all kinds and the rights of third parties, particularly patents, are not violated, and shall indemnify us against any third party claims of infringement in this respect, unless he is not at fault.
The invoice must be submitted separately in duplicate immediately after delivery. Monthly invoices are to be sent in duplicate by the third of the month following delivery. We make payment within 14 days after receipt of invoice less a 3 % discount or in 30 days net exclusively at our discretion, and through means of payment at our discretion. All documentation related to ordering and inquiries we placed at the disposal of the supplier must be returned to us immediately free of charge.
- Place of performance and jurisdiction
The place of fulfilment, provided a delivery address is specified, is the delivery address, otherwise Münchingen. The place of jurisdiction is Stuttgart. We can sue the supplier also at our discretion at the local court competent for his headquarters.
- Applicable law
For the contractual relationship the law of the Federal Republic of Germany applies. CISG does not apply.
- Data protection
We store data within the context of our mutual business in accordance with the Data Protection Act (BDSG).
- Final provision
Our conditions and the contract remain valid in full even in the case of legal ineffectiveness of individual parts. In place of an ineffective provision, a provision is made which comes closest to the invalid provision. If any provision of these terms and conditions or the contract with regard to mandatory foreign law is invalid, the supplier shall upon request agree those contract amendments with us and make such declarations towards third parties or authorities by which the effectiveness of the relevant provision and if this is not possible, its economic content is preserved, even under foreign law.
Terms and conditions of sale and delivery
for used TAMPOPRINT® machines
- Contracts will only materialise on the basis of a written order confirmation. These terms and conditions of sale and delivery constitute an integral part of our offers and contracts, for current and future business relationships too. This means that terms and conditions of business to the contrary are expressly rejected. They will not even be recognised in those cases in which we do not expressly reject them again upon delivery. Agreements and terms and conditions of business which differ will only be binding when they have been confirmed by us in writing.
- The prices shall be net ex works and do not include packaging, transport, insurance and assembly. Agreements to the contrary will have to be confirmed by us in writing. We shall reserve the right to change our prices to reflect changes in wages and the price of materials occurring after we have confirmed the order, or if additional costs are incurred as a result of the orderer requesting an order amendment to the objects to be delivered or if this is agreed with the orderer.
- Terms and conditions of payment
- If the orderer finds himself in default with the payment of a demand for payment from us which is due − regardless of the reason, all the invoices owed to us by the orderer shall become due. Prolongations of payments or other derferments of payments allowed (also in the event that bills of exchange are accepted) will end. A stop will be placed on all deliveries.
- The orderer shall only be able to offset uncontested claims and/or claims finally confirmed in court. The orderer can not under any circumstances assert a right of retention not relating to the same contract. In so far as the right of retention is based on the same contract, it shall be excluded to the extent allowed by (German) law.
- The orderer shall have to pay interest on outstanding invoices at 2% above the bank rate charged by the Deutsche Bank at that time. This shall also apply to the period covered by a deferment of payment. If the orderer should find himself in default, we shall reserve the right to assert default damages over and above this.
- Retention of title
- We shall reserve title to the objects delivered by us (goods subject to reservation of title) until all − even future − claims from our business relationship with the orderer have been paid.
- If the goods subject to a retention of title are connected together with other things not belonging to us, so that they become an important element of a new thing, we shall consequently become the co-owner of the new thing. If, when our goods are joined with the other goods not belonging to us, and our title comes to an end in accordance with § 947 Section 2 of the (German) Civil Code, the orderer shall consequently hereby grant us co-ownership to the new thing. He shall keep the thing in safekeeping for us free of charge. In both cases the proportion of our co-ownership will be determined by the ratio of the value of the goods subject to the retention of value to the value of the other things connected with them at the point in time of the connection.
- If the goods subject to a retention of title are processed or transformed into a new thing, the orderer shall be acting for us as a manufacturer within the meaning of § 950 of the (German) Civil Code. We hereby assign to the orderer co-ownership of the property acquired in this way and given this, we cancel the duty of the orderer to keep the goods in safekeeping for us. The proportion of the orderer's co-ownership shall be determined by the ratio of the value of the goods subject to the retention of title to the value of the new thing after processing or transformation.
- In so far as in the course of rendering our performance we process things belonging to the orderer, we shall acquire co-ownership to them. The proportion of our co-ownership shall be determined by the ratio of the value of the things owned by the orderer to the value of the processing carried out by us.
- If, as a result of processing, we acquire ownership to the thing processed by us in accordance with § 950 of the (German) Civil Code, we shall be obliged to assign co-ownership to those who suffer a lapse of title as a result. The proportion of co-ownership shall be determined by the ratio of the value of the processed thing to the value of the processing carried out by us.
- The orderer shall only be entitled to sell the goods subject to the retention of title, the new thing crea- ted by using the goods subject to the retention of title, or the thing processed by us, only subject to the following terms and conditions.
The orderer shall have to maintain the ownership or co-ownership to which we are entitled against his buyer until all the orderer's claims arising from his business relationship with the buyer have been paid. Moreover, the orderer hereby assigns to us all the claims accruing to him from the sale subject to the following proviso: If we have sole ownership of the sold goods, the claim shall be assigned to us in full. Otherwise that part of the claim will be assigned to us which is the equivalent to the proportion of our co-ownership in the sold goods. Until revocation the orderer shall be entitled to collect the assigned claims in his own name.
- A right of lien as well as the right of retention shall be created for all the raw materials of all types han- ded over by the orderer and the goods put into store for him when they are handed over, or no later than the point in time at which the full payment of the goods by the orderer can be reckoned with in accordance with proper and standard commercial practice. If the goods subject to a right of retention and/or goods encumbered with a right of lien in accordance with the above sentence 1 are subject to the orderer's co- pyrights or rights of use and enjoyment, the right of sales shall be assigned to us in the event that a sale has to be effected through us, to the extent that this is necessary for the sale.
Crates, loading sledges, and such like shall be invoiced at cost.
- Dispatch will be ex-works or ex-store at the orderer's risk. This shall also apply in those cases in which it has been agreed that delivery is to be carriage paid. We shall give an assurance that as long as we do not receive notification to the contrary, all consignments shall be insured against loss and breakage and we shall invoice this at cost.
- If there is a delay in dispatch for a reason for which the orderer is to blame, the risk shall pass over to the orderer on the day on which the goods are ready for dispatch.
Upon request, one of our technicians will be provided to assemble, start up, and to give the orderer's staff induction training. For this service we shall invoice the orderer at our daily rates in force for this service at the time, plus travel costs, plus subsistence costs. Skilled workers and equipment required by the technician are to be provided. We reserve the right to invoice waiting time caused by inadequate preparation by the orderer at higher rates.
- The scope of the delivery shall be decided only by the contents of our order confirmation. Provided that nothing to the contrary is expressly agreed, printing ink and chemical colours shall not be included in the scope of the delivery for a TAMPOPRINT printing machine.
- Delivery dates and delivery periods shall apply subject to unforeseen hindrances, which are beyond our power or the power of our sub-suppliers, such as strike, disruptions to distribution, difficulties in procuring materials, disruptions in the transport system as well as the refusal by official or other third parties to grant the licences required to effect delivery and similar events. During the period in which one of these events takes effect as well as during a period after the effect has finished, we cannot be regarded as having got into or having been in delay.
- If a delivery period has been agreed, it shall consequently begin to run on the day on which a written agreement is reached between the orderer and ourselves about all details and terms and conditions of the contract.
- Delivery dates and delivery periods shall only be adhered to by us if the orderer fulfils his duty to co- operate on time. That means that he has submitted the documents and information required to carry out the order to us on time and has fulfilled his other duties in accordance with the contract. If these precon- ditions are not fulfilled on time, or if the orderer organises modifications to the object to be delivered, the delivery dates and delivery periods shall be postponed accordingly.
- We shall be entitled to make part deliveries to a reasonable extent.
- If we find ourselves in delay with our performance, the orderer shall consequently have the following rights:
- We shall only be liable for the damages which can be claimed based on legal foundation. The place for jurisdiction is Stuttgart.
- The orderer can set us a reasonable subsequent period for performance. After the expiry of this period the orderer may withdraw from this contract. If the orderer demands compensation for damages on account of non-fulfilment, then the legal provisions within Germany are valid. In the event that we are guilty of ordinary negligence the amount of compensation shall be limited to the value of the object to be delivered.
- If the manufacture of the object to be delivered requires us to produce a new design or special production, this shall consequently be brought to the attention of the orderer in writing. In this event the contract shall be concluded subject to the suspensory condition that it is technically possible for us to manufacture the object to be delivered at a reasonable financial cost. If these conditions are not fulfilled, claims by the orderer for compensation − regardless of what type − shall consequently be ruled out. Components which are part of the TAMPOPRINT system, in particular printing pads, must not be used on machines manufactured by competitor companies. The orderer shall be liable in full for all damages we sustain as a result of a breach in this obligation.
- Tools, models
The tools, models etc. required to carry out orders shall remain our property, even if they have been ma- nufactured in accordance with the orderer's specifications and even if the costs incurred to produce them have been reimbursed in part or in full to us.
- Industrial property rights, Patents
We shall not be obliged to check whether any patent rights or other third party industrial property rights will be breached as a result of the manufacture and/or the use of the object to be delivered, to the extent that it differs from our standard range of goods and is based on the specific wishes of the orderer. The orderer shall be obliged to exempt us from any claims for damages which may be made by third parties.
- Output sample
If we provide output samples with the request that they are checked, the nature of the performance rende- red by the object delivered shall be regarded as having been approved in so far as the orderer does not object in writing within 14 days.
- Warranty claims
- The orderer's warranty rights assume that he has fulfilled the duties incumbent upon him to check the delivered goods and notify us of defects in the proper manner in accordance with § 377, and § 378 of the (German) Commercial Code.
- In so far as there is a defect in the purchased goods for which we are to blame, we shall, at our option, be entitled to rectify the fault or to supply a replacement. In the event that we rectify the defect, we shall be obliged to bear all the expenses necessary to rectify the defect, in particular transport costs, travelling expenses, labour and materials, provided that these are not increased as a result of the purchased goods having been moved to a place other than the place of fulfilment.
- The delivered machines are designed to work in a single shift operation. The statutory period of limita- tion shall be reduced to 3 months, calculated from the date on which risk is passed over, if the machine is used in a multi-shift operation.
- If we are not prepared or not able to rectify a defect or deliver a replacement, in particular if there is a delay in this beyond a reasonable period for reasons for which we are to blame, or if the rectification of the defect or delivery of a replacement goes wrong for other reasons, the orderer shall consequently be entitled at his option, to withdraw from the contract or to demand a corresponding reduction in the purchase price.
- The retention of payments or offsetting on account of any counter claims by the orderer there may be which are contested by us shall not be admissible.
- Provided that there is nothing to the contrary below, other claims by the orderer over and above these − regardless of the legal reason on which they are based − shall be inadmissible. This means that we shall not be liable for damages which are not incurred on the object delivered itself; in particular, we shall not be liable for lost profit or other damage to the assets of the orderer.
- The above release from liability shall not apply in so far as the cause of the damage is based on intent or gross negligence. Moreover, it shall not apply in those cases in which the orderer asserts a claim for compensation for damages because of a lack of a warranted quality or non-fulfilment in accordance with § 463, § 480 Section 2 of the (German) Civil Code. In this meaning a warranted quality shall only exist in those cases in which we have supplied output samples or if we expressly guarantee that the delivered object has a specific quality and in doing so we knowingly intend to accept the risk from the consequences of this quality not existing. This cannot be simply assumed in those cases when the object to be delivered is described or labelled in the terms and conditions of the contract or if the conformance with the contract of our delivery is confirmed with regard to certain circumstances.
- In so far as we do breach a duty which is fundamental to the contract with our negligent conduct, our duty to provide a replacement for damage to property or personal injury shall be limited to the compensa- tion payments provided for in our product liability insurance policy.
- The warranty period shall be 6 months calculated from the passing of risk. This period shall be a statutory period of limitation and shall also apply for compensation claims for consequential harm caused by a defect, provided that claims are not asserted on the basis of illegal acts.
- Final provisons
- The place of fulfilment and place of jurisdiction for all disputes between the parties arising from the contractual relationship shall be the headquarters of the Supplier, provided that the orderer is a registered trader, legal entity under public law or a special fund under public law.
- The contractual relationship shall be governed solely by the law of the Federal Republic of Germany. The application of the standard laws on sale in the Hague Convention on the Law on Sales as well as the United Nations Agreement dated 11th April 1980 on contracts in international purchase of goods shall be inadmissible.