A. General provisions
The general terms of sale (“GTS”) of PFR Nord GmbH below apply exclusively; TM Recycling does not accept any customer terms that conflict with or diverge from these GTS – save TM Recycling explicitly accepts the applicability of divergent terms in writing. These GTS also apply even if TM Recycling is aware of customer terms that conflict with or diverge from these GTS and nevertheless executes delivery or renders a service to the customer without reservation. These GTS only apply to companies in the sense of § 14 of the German Civil Code (BGB) and to legal entities under public law and special public funds. These GTS apply for the complete future business relationship with the customer and replace any contrary, earlier GTS or general terms of business of TM Recycling. Any individual agreements reached with the customer from case to case (including side agreements, additions and changes) have priority over these GTS. The content of such agreements must be set forth in a written contract or in written confirmation from TM Recycling. Declarations and notifications relevant in law that the customer must make to TM Recycling after conclusion of the contract (e.g. deadlines, notifications of defects, declarations on rescission or reduction of the price) must be made in writing to be effective.
II. Conclusion of contract
Offers from TM Recycling are subject to confirmation and non-binding. The ordering of goods by customers is deemed a binding offer of contract. Acceptance may be declared either by acknowledgement of the order (orally or written) or by delivery of the goods to the customer.
III. Terms of payment
The prices of TM Recycling “ex store” plus value added tax shall apply. A prompt payment discount may only be deducted if an explicit written agreement has been reached to this effect. Sums invoiced by TM Recycling or credit notes received by TM Recycling are payable immediately without deduction. If settlement by way of credit notes has been agreed, the customer is obligated to issue same immediately after receiving the delivery. In the event of default of payment evidently due to financial collapse of the customer TM Recycling is entitled to rescind the contract without notice.
TM Recycling is entitled to collateral of normal type and scope for receivables even if they are conditional and limited.
V. Data privacy
The customer is agreed that TM Recycling shall collect person-related data by way of presentation of identification documents for the purposes of invoicing or issuing of credit notes and in the case of cash payments and store same in accordance with the provisions of the German Federal Data Protection Act.
VI. Retention of title
TM Recycling retains title to the delivered goods until unconditional and full settlement of all receivables TM Recycling is entitled to from the customer and its affiliated companies and subsidiaries now and in the future for whatever legal reason. In the event of breach of contract by the customer, especially default of payment, TM Recycling is entitled to take back the goods subject to retention of title. Taking back of the goods by TM Recycling does not – unless provided for otherwise in law – imply any rescission of contract save TM Recycling declares this in writing or TM Recycling has seized the goods. Even after taking back the goods subject to retention of title TM Recycling is entitled to turn them to account; the revenues of such a sale are – less reasonable expenses of sale – to be netted against the liabilities of the customer to TM Recycling. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured receivables. In the event of seizures or other action by third parties relating to the goods subject to retention of title, the customer must inform to be netted against the liabilities of the customer due to TM Recycling immediately in writing. If the third party is not able to reimburse TM Recycling the reimbursable court and other legal costs of a suit in terms of § 771 or § 805 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the losses incurred by TM Recycling in this regard. The customer is entitled to market the goods subject to retention of title in the ordinary course of business; the customer, however, already now assigns all receivables up to the respective final invoice sum including value added tax to TM Recycling which accrue from the resale against its customers or third parties – regardless of whether the goods subject to retention of title were resold before or after processing. Resale in the sense of this paragraph also includes use of the goods subject to retention of title to fulfil contracts for work and services. The customer is also entitled to collect this receivable after assignment. This, however, does not impair the right of TM Recycling to collect the receivable itself. TM Recycling undertakes, however, to desist from collecting the receivable as long as the customer fulfils its payment obligations to TM Recycling properly and correctly, especially as long as no petition to open insolvency proceedings on the assets of the customer has been filed or payments have not been ceased. Should one of the cases named in sentence 4 arise, TM Recycling may demand that the customer immediately informs TM Recycling of the assigned receivables and their debtors, provides all information necessary for collection, hands over the applicable documents and informs the customer’s debtors of the assignment. Processing or transformation of the goods subject to retention of title by the customer is always done for TM Recycling as manufacturer without imposing any obligations on TM Recycling. If the goods are processed together with other objects not belonging to TM Recycling, TM Recycling acquires co-title to the new object or new objects in the ratio of the value of the goods subject to retention of title to that of the other objects processed at the time of processing. The provisions according to points 1 to 3 apply analogously for the object or objects produced by processing. If the goods subject to retention of title are amalgamated inseparably with objects not belonging to TM Recycling, TM Recycling acquires co-title to the new object or new objects in the ratio of the value of the goods subject to retention of title to that of the other objects amalgamated at the time of amalgamation. If amalgamation is effected such that the customer’s object is to be seen as the main object, it is deemed as agreed that the customer transfers co-title to TM Recycling proportionately. The customer safekeeps the accrued sole or co-title for TM Recycling. The customer also assigns TM Recycling collaterally the claims arising in its favour vis-à-vis a third party from the combination of the goods subject to retention of title with a property as collateral. TM Recycling undertakes to release the collateral it is entitled to on demand by the customer insofar as the realisable value of the collateral exceeds the receivables being secured by more than 10 percent; the choice of which collateral is to be released resides with TM Recycling.
B. Execution of delivery
I. Delivery periods, delivery dates
Dates or periods for delivery of goods and services are only binding after written confirmation by TM Recycling. All delivery periods and dates are subject to the provision of unforeseeable production disturbances and timely delivery of TM Recycling with the necessary primary materials and, insofar as small completion quantities from purchases have been agreed or are customary in the trade, subject to the provision of deliverability and timely delivery of TM Recycling itself. If the customer does not fulfil its contractual duties, e.g. opening of a letter of credit, presentation of local or foreign certificates, rendering of advance payment or the like, on time, TM Recycling is entitled to defer the delivery periods and dates reasonably according to the needs of its production operations. For adherence to delivery periods and deadlines, the time of despatch ex works/store is decisive. TM Recycling shall not be responsible for delays in deliveries and services due to force majeure and due to events that significantly complicate delivery for TM Recycling or render same impossible – this includes particularly industrial disputes, official orders, transport delays, machine breakage and other circumstances for which neither party is responsible, even if they occur at a supplier or sub-supplier of TM Recycling – even if binding periods and dates have been agreed. These circumstances entitle TM Recycling at its free discretion to defer the delivery or service for the duration of the impediment plus a reasonable start-up time thereafter or to withdraw from the contract in whole or in part regarding the part not yet fulfilled. TM Recycling may only invoke the aforementioned circumstances if it has informed the customer immediately of these circumstances. If the impediment in the sense of point 4 lasts longer than 3 months, the customer is entitled after setting a reasonable period of grace to withdraw from that part of the contract not yet fulfilled. If the delivery or service period is extended or if TM Recycling is released from its delivery or service obligation, the customer cannot derive any claims for compensation from this. If the delivery periods are not kept, the customer is only entitled to the rights from § 281 and § 323 of the BGB if it has set TM Recycling a reasonable deadline for delivery combined – and insofar deviating from § 281 and § 323 of the BGB – with the declaration that it shall reject acceptance of the delivery/service after expiry of the deadline; the right to fulfilment is precluded after fruitless expiry of the deadline. The customer must send a written reminder when default of delivery begins. TM Recycling is entitled at all times to partial delivery of products, work and services in a reasonable scope.
II. Dimensions, weights, quality
Deviations in dimensions, weights and quality are permissible according to DIN or standard practice. The weights are determined on the calibrated scales of TM Recycling or authorised third parties and are decisive for invoicing. If individual weighing is not normal practice, the respective total weight of the shipment shall apply.
III. Despatch, packaging and passage of risk
The delivery is effected ex store of TM Recycling or authorised third party. Same is also the place of performance. At the request and expense of the customer the goods shall be sent to another destination (sale to destination). If not otherwise agreed, TM Recycling is entitled to determine the type of shipment (in particular transport company, means of shipment, packaging) itself. Any resultant costs shall be borne by the customer. The risk passes to the customer on delivery of the goods to the forwarder or carrier, at the latest, however, on leaving the works or store. At the request of the customer TM Recycling shall take out shipping insurance or other suitable insurance cover at the customer’s expense in order to insure the contractual performance as far as possible.
IV. Claims for defects
The goods are according to the contract if they at the time of the passing of risk do not deviate from the agreed specification or only do so inconsiderably. The contractual conformity and faultlessness of the goods is determined exclusively by the explicit agreements on quality and quantity of the ordered goods. Liability for a particular purpose or a particular suitability is only accepted if this has been explicitly agreed; Apart from that the risk of suitability and use lies solely with the customer. TM Recycling is not liable for deterioration or loss or improper treatment of the goods after the passage of risk. The contents of the agreed specification and any explicitly agreed purpose do not imply a guarantee; the assumption of a guarantee requires a written agreement. If the delivery or service is defective, TM Recycling is entitled at its free discretion to eliminate the defects or to effect a replacement delivery. TM Recycling may refuse cure if it is only possible with disproportionate costs. If elimination of the defects or the replacement delivery is delayed for reasons for which TM Recycling is responsible or if the elimination of the defects or replacement delivery fails for good for some other reason, the customer is entitled to the normal statutory warranty rights. The customer is only entitled to compensation for damages or reimbursement of expenses in accordance with section C. The customer only has a right to claims for defects if the customer notifies TM Recycling in writing of a defect without delay, at the latest, however, within 5 workdays. Defects that cannot be detected immediately after the delivery or service in spite of careful inspection are to be reported to TM Recycling immediately after they are discovered, at the latest, however, one month after delivery. Once an agreed acceptance inspection has been carried out, it is not possible to claim for defects that could have been established at this acceptance inspection. In the event of a claim the customer must grant TM Recycling the opportunity to inspect the goods concerned without delay; on request the goods concerned or a sample thereof are to be made available at the expense of TM Recycling. In the case of unjustified claims TM Recycling may charge the customer the freight and handling costs as well as the inspection costs. The limitation period in the case of defective delivery ends – except in the case of intent – after expiry of one year after delivery. The statutory limitation periods for goods that in accordance with their normal use were used for a building structure and which caused defectiveness of such a structure remain unaffected by this. Improvements or replacement delivery do not mean that the limitation period will start anew. The customer’s recourse claims in accordance/pursuant to § 478 of the BGB against TM Recycling are restricted to the statutory scope of the claims for defects of third parties made against the customer and require that the customer has in its relationship with TM Recycling fulfilled its obligation to give notice of defects in terms of § 377 of the German Commercial Code (HGB).
C. General limitations of liability
If not regulated otherwise in these terms, TM Recycling is liable without restriction: for every intentional or grossly negligent cause of damage by TM Recycling, one of its legal representatives, proxies or vicarious agents; for intentional or negligent harm to life, body or health; and for claims under the product liability law or if TM Recycling has maliciously concealed the defectiveness of an object or has granted an explicit guarantee for the quality of an object. Apart from that TM Recycling is only liable in cases of simple negligence for breach of elementary contractual duties and restricted to the typically foreseeable loss. Elementary contractual duties in the sense of this section C are contractual duties whose fulfilment is the basis for the proper execution of the contract in the first place and on whose fulfilment the other party to the contract regularly relies and may relay. The parties to the contract agree that the typically foreseeable loss is limited to a maximum of € 5,000,000.00 for personal injuries and damage to property and to a maximum of € 250,000.00 for other pecuniary losses. Further liability of TM Recycling for compensation for damages beyond that provided for in the above points is – regardless of the legal nature of the claim made – precluded. The aforesaid liability regulations also apply to the personal liability of employees, representatives and agents of TM Recycling. The contracting party shall relief TM Recycling of any liability resulting from claims filed by third parties in connection with the nature or quality of the delivery or service rendered by the contracting party.
I. Proof of export
If a customer located outside the Federal Republic of Germany (foreign-territory buyer) or its authorised agent collects goods and transports or ships them to the foreign territory, the customer must produce the proof of export necessary for tax purposes to TM Recycling. If this proof is not produced, the customer must pay the value added tax on the invoice sum applicable for deliveries within the Federal Republic of Germany.
The customer is obligated to treat all not obvious commercial and technical information and knowledge that becomes known from the business relationship between TM Recycling and the customer as business secret. The customer may only may only advertise our mutual business relationship after receiving the prior written consent of TM Recycling.
III. Netting, rights of retention
The customer may only net with undisputed or legally established claims; it is only entitled to rights of retention if they are based on the same contractual relationship.
IV. Applicable law/Language of contract
The law of the Federal Republic of Germany shall apply exclusively. The UN Convention on Contracts for the International Sale of Goods is precluded. The contractual and business language is German.
V. Place of jurisdiction
The exclusive place of jurisdiction is the registered seat of TM Recycling. TM Recycling is, however, also entitled to assert claims at the place of general and special jurisdiction of the customer.
VII. Severability clause
Should one or more provisions of these GTS be or become ineffective or unenforceable, this shall not affect the validity of the remainder of these GTS. The parties undertake to replace ineffective or unenforceable provisions of these GTS immediately with effective provisions coming as close as possible to the commercial objective of the ineffective provisions. The provisions according to sentences 1 and 2 shall apply analogously should there be omissions in these GTS.