1. General – field of applicability
1.1 All deliveries, services and offers of TPH Bausysteme GmbH (”TPH”) to its contracting partners (”Principal”) shall take place exclusively on the basis of these general terms and conditions of supply. Any conflicting or supplementary terms and conditions of the Principal shall not apply, even if TPH does not separately object to their applicability in individual cases or of it carries out the order without such an objection. This shall also apply in the case of public legal allocation guidelines.
1.2 Individual agreements shall take priority over these terms and conditions of supply. The fixed written contents shall be decisive. Essential legal declarations and notices which must be submitted to TPH by the Principal following the conclusion of the contract (for example the setting of deadlines, defect notifications, declaration of rescission or reduction) shall require written form.
1.3 The terms and conditions of delivery shall apply even if these are not agreed separately and also to all future deliveries of services provided for the Principal.
2. Offer and documentation
2.1 Offers of TPH shall be subject to confirmation and non-binding. A contract shall only come into existence if TPH confirms an order in writing or carries out the engagement.
2.2 Images, prospectuses, calculations and other documents may only be made accessible to third parties with the written permission of TPH. This shall apply in particular to documents which are designated as “confidential”. Also in case of a permitted forwarding on, TPH shall retain all ownership rights and copyright and these shall be identified as such.
2.3 The safety-relevant information in accordance with Regulation (EC) No. 1907/2006 (REACH) are retrievable from the safety data sheet issued for each product. The content is decisive according to the current status at the time of delivery. The customer is obliged to use only the information provided by TPH. If the customer is missing the current version of the safety data sheet, the current version can be downloaded from the TPH website (http://tph-bausysteme.com/download/).
3. Prices – terms and conditions of payment
3.1 Unless otherwise stated in the order confirmation, the respective prices ex place of delivery at the time of conclusion of the contract shall apply. Any shipping costs stated shall only be of an indicative nature. The Principal shall bear the costs of shipping, packaging, loading and transportation which are actually incurred.
3.2 All prices are in euros and are subject to the statutory value added tax. A discount deduction shall only be permissible with a written agreement.
3.3 All payments shall be due as of the date of invoicing. The Principal shall enter default 30 days after the date of the invoice, without the need for a warning to be issued.
3.4 The acceptance of cheques or bills of exchange shall only take place on account of performance. Any costs incurred by cheques or bills of exchange shall be borne by the Principal.
3.5 The setting off against counterclaims of the Principal or the retention of payments due to such claims shall only be permitted if the counterclaims are undisputed or have been recognised by a court.
3.6 TPH shall be entitled to only carry out outstanding deliveries or services in consideration of an advance payment or the provision of security if circumstances become known to it following conclusion of the contract which point to a significant reduction in the creditworthiness of the Principal and due to which the payment of the open claims accrued to TPH under the contractual relationship (including from other individual orders to which the same framework agreement applies) is endangered. Should the Principal fail to comply with the demand, then subject to additional statutory rights, TPH shall be entitled to rescind the contract either in full or in respect of the part which has not yet been fulfilled.
4.1 Delivery deadlines and dates shall only be binding in case of an express agreement. Should shipping have been agreed, delivery deadlines and dates shall relate to the time of handover to the carrier or shipping agent. Should TPH not be able to comply with binding delivery deadlines for reasons for which it is not responsible, it will immediately inform the Principal of such.
4.2 TPH shall not incur liability for the impossibility of delivery or for delivery delays due to force majeure or due to unforeseeable circumstances beyond its control, such as operational disruptions, strikes, transportation delays, non-availability of raw materials, shortage of workers, non-timely supply by suppliers or official ordinances. Should such events make the delivery significantly more difficult or impossible and should the hindrance last for more than 30 days, TPH shall be entitled to rescind the contract. Any consideration which has already been provided by the Principal will be immediately refunded. In case of temporary hindrances, the delivery deadlines shall be extended by the period of the hindrance. Should acceptance of the delivery not be able to be reasonably expected on the part of the Principal in case of delays of more than 30 days, it shall be entitled to rescind the contract by means of an immediate written declaration to TPH in respect of the part of the agreement which has not been fulfilled.
4.3 In case of TPH entering default, the Principal must issue a warning with a reasonable period of grace. Following the fruitless expiry of the period of grace, the Principal shall be entitled to rescind the contract. Otherwise, the liability of TPH shall be limited in accordance with Number 8 of these terms and conditions of delivery.
4.4 Should the Principal agree to collect the products by itself, these shall be available to it for collection within a period of 5 working days at the place of business of TPH. Following expiry of the collection deadline, TPH shall reserve the right to charge storage costs to the amount of 2% of the order value, to store the products elsewhere at the expense of the Principal or to sell these on to a third party.
4.5 The commencement of the delivery shall be dependent on the complete fulfilment of any existing co-operation obligations incumbent on the Principal, including the clarification of any queries which are essential for the fulfilment of the order. Regardless of its rights connected to default on the part of the Principal, TPH shall be able to demand an extension of delivery deadlines whilst the Principal does not comply with its contractual obligations. Should the Principal enter acceptance default or should it breach its co-operation obligations, TPH shall be entitled to demand compensation in respect of the losses incurred by it, including any additional expenses.
4.6 TPH shall be entitled to provide partial deliveries, provided that the partial delivery is usable by the Principal within the framework of the contractually agreed purpose of use, the delivery of the remaining products is guaranteed and no significant additional expenses or additional costs are incurred by the Principal as a result.
5. Transfer of risk
5.1 All deliveries shall take place ex-factory (Incoterms 2010).
5.2 On the request of the Principal, TPH will take out a transportation insurance policy at the expense of the former.
5.3 Should the Principal enter acceptance default, the risk of possible destruction or possible deterioration of the products shall be transferred to it.
6. Return receipt of goods
6.1 The return receipt of defect-free products which have already been delivered shall only take place if such a return obligation was already expressly agreed within the framework of the order confirmation and only if the said products are in a flawless condition. The return dispatch shall take place carriage paid to the TPH warehouse.
6.2 The return receipt shall only take place in consideration of the issuing of a credit note. In case of the return receipt of proper products, TPH shall charge a rewarehousing fee to the amount of 10% of the agreed purchase price. Credit notes will not be paid out, rather they will only be set off.
6.3 The credit note shall be valid for one year. Thereby the time of the new order shall be decisive, with express reference to the issued credit note.
7. Defect claims
7.1 Unless otherwise provided below, the statutory provisions shall apply to the assertion of warranty claims. In particular, § 377 of the German Commercial Code (HGB) shall apply. Should a defect become apparent at the time of inspection or subsequently, TPH must be immediately notified of such in writing. In order to be deemed as immediate, the notification must be made within one week.
7.2 In case of the assertion of warranty claims, the Principal shall be obliged to notify TPH of the batch numbers concerned which are found on the containers.
7.3 Defect claims shall be excluded if the TPH usage regulations, general regulations concerning use and sets of rules or the recognised rules of technology were not complied during the use and deployment of products and the damage is due to such non-compliance.
7.4 The warranty on the utilization and durability of the chemicals supplied by TPH is limited to a period of 12 months from manufacturing date, and at least 6 months after delivery date. Excluded are those products with shorter durability, which is expressly stated in the respective technical data sheet.
7.5 Warranty claims of the Principal in respect of defects which arise following expiry of the permitted storage period notified by TPH shall be excluded.
7.6 Should subcontractors or suppliers of TPH deliver defective products, then according to its choice, TPH shall assert the warranty claims against the subcontractor or supplier on behalf of the Principal or shall assign these to the Principal. In case of such defects, warranty claims shall only exist against TPH following an unsuccessful or futile bringing of a lawsuit against the subcontractor or supplier before a court.
7.7 All specifications of TPH shall only be performance descriptions and, unless otherwise agreed in writing, these shall not represent a guarantee. Quality deviations or deviations which affect use of the products which are only of a minor nature shall not give rise to any warranty claims.
7.8 In case of material defects to the delivered objects, TPH shall be obliged and entitled to initially choose between improvement or replacement delivery (supplementary performance) within its reasonable deadline. The supplementary performance shall not include the dismantling of the defective item or its re-installation, should TPH not have been originally obliged to install the item. For the duration of the supplementary performance, the limitation period shall be merely suspended. It shall not restart. Should the supplementary performance fail despite two attempts or should TPH decide not to provide supplementary performance, the Principal shall be entitled to a reduction or it may rescind the contract.
7.9 TPH shall be entitled to make supplementary performance conditional on payment of the due purchase price by the Principal and/or in reservation of a reasonable proportion which corresponds to the defect.
7.10 Should a defect correction request of the Principal be shown to be unjustified, TPH shall be entitled to demand reimbursement of the costs incurred as a result.
7.11 Recourse claims of the Principal which go beyond the statutory regulation set out in § 478 of the German Civil Code (BGB) shall be excluded.
7.12 The warranty period for defects shall be one year from the time of delivery. The above shall apply in respect of any granted guarantees, unless otherwise prescribed therein. Should the statutory warranty period amount to more than two years (for example for building structures), the statutory time limit shall apply. The statutory time limits shall also apply in case of intentional acts, injury to life, body or health or to recourse claims in accordance with § 478 of the German Civil Code (BGB).
7.13 In addition, the following shall also apply in case of claims connected to defects of title: a) Unless otherwise agreed, TPH shall merely be obliged to provide the deliveries in the country of the delivery address free from third party rights. In case of supplementary performance at a place other than the originally agreed location, TPH shall be entitled to charge any additional expenses to the Principal, in particular those connected to transportation, labour and material costs. b) In case of a breach of third party property rights for which TPH is responsible, it shall be entitled to choose between either acquiring, at its own expense, a sufficient right of use for the agreed or required use and assigning this to the Principal or amending or exchanging the delivered products in such a way that the property right is not infringed, provided that the agreed or required use of the delivered products is not significantly impaired as a result. Should this not be possible for TPH or should TPH decide not to provide supplementary performance, the Principal shall be entitled to a reduction or it may rescind the contract.
7.14 Number 8 of these terms and conditions of supply shall apply in respect of damages claims.
8.1 Regardless of legal reason, TPH shall only incur liability to pay damages in case of intent and gross negligence except a) in case of damages connected to injury to life, body or health and b) in case of damages connected to breaches of a significant contractual obligation (obligation whose fulfilment is critical for performance of the contract and on whose compliance the contracting partner regularly relies and may rely on). However, in all cases, the liability of TPH shall be limited to reimbursement of losses which are foreseeable and typical of the contract.
8.2 The limitations of liability under Number 8.1 shall not apply of TPH fraudulently conceals a defect or has provided a guarantee in respect of the quality of the products. In addition, the limitations of liability shall not apply to claims of the Principal under the German Product Liability Act (Produkthaftungsgesetz).
8.3 The technical advice of TPH or instructions concerning the use of a product in ongoing operations shall only be provided following a written request by the Principal and only in accordance with its specifications. The Principal shall be obliged to independently check and monitor the requirements of applicability and the type of use of the delivered products (local circumstances, suitability of the building, materials construction, statistics). Numbers 8.1 and 8.2 shall apply accordingly.
9. Reservation of ownership
9.1 TPH shall reserve ownership of the delivered objects until receipt of all payments connected to the business relationship with the Principal. In case of behaviour on the part of the Principal which is in breach of contract, in particular failure to pay the purchase price which is due, TPH shall be entitled to rescind the contract and demand return of the products.
9.2 The Principal shall be obliged to carefully handle the delivered object, in particular the Principal shall be obliged to insure it against fire, water and theft damage at its own expense, to an amount which covers replacement as new. To the extent that maintenance and inspection work is necessary, the Principal must carry this out in good time at its own expense.
9.3 The products which are subject to reservation of ownership may not be pledged to third parties or be handed over as security prior to full payment of the secured claims. The Principal shall immediately inform TPH in writing should third party attacks be made against the products which belong to TPH. The Principal shall be liable in respect of the court and out-of-court costs concerning a third party action against execution in accordance with h § 771 of the German Code of Civil Procedure – ZPO.
9.4 The Principal shall be entitled to sell on or process the products which are subject to reservation of ownership in the course of normal business dealings. The reservation of ownership shall extend to the items created as a result of the processing, mixing or connection of the products at their full value, whereby TPH shall be deemed to be the manufacturer. Should its right of ownership continue to exist in case of a processing, mixing or processing with third party products, TPH shall acquire co-ownership to the relationship of the invoice values of the processed, mixed or connected products. The same shall apply in case of incorporation into land. Otherwise the same shall apply to the created item as applies to the products delivered under reservation of ownership. The claims against third parties accrued from the selling on of the products or the item are hereby being assigned by the Principal to TPH as the accepting party as security in full or to the amount of any co-ownership share.
c) The Principal shall remain entitled to collect the claim alongside TPH. TPH shall be obliged not to collect the claim should the Principal comply with its existing payment obligations in relation to it, should the Principal not enter payment default, should no application for the opening of insolvency proceedings have been lodged and should no other obstacle to performance be present as defined in § 321 of the German Civil Code (BGB). However, should this be the case, TPH may demand that the Principal discloses the assigned claims and their debtors, that the Principal provides all the information and relevant documents necessary for collection and informs the debtor (third party) of the assignment.
d) Should the realisable value of the securities exceed the claims of TPH by more than 10%, TPH will release securities on request of the Principal according to its own choice.
10. Export controls
Should an approval obligation or other agreement obligation under public law exist which is necessary for fulfilment of the contractual obligations on the part of TPH, in particular in accordance with German, European or American foreign trade laws, the contract shall be subject to the condition precedent the such a permit is issued or that the approval is received from the competent authorities. TPH shall be obliged to apply for such a permit. The Principal shall be obliged to co-operate in the procedure to the best of its ability. The Principal may not use or further supply the delivered products in a manner which deviates from the approval or permit. Should an approval or permit not be issued in the first course of procedure, TPH shall not be subject to any further obligations.
11. Place of jurisdiction – place of performance
11.1 To the extent that this can be agreed, Hamburg shall be the place of jurisdiction. However, TPH shall be entitled to bring a lawsuit at the general place of jurisdiction of the Principal.
11.2 Unless otherwise provided in the order confirmation, the place of performance shall be Hamburg.
12. Applicable law, severability clause
12.1 The legal relationships between the parties shall be exclusively in accordance with German law, to the exclusion of the United Nations Convention on the International Sale of Goods (UNCITRAL/CISG) and any leading foreign legal norms.
12.2 Should any individual provisions of this contract be ineffective, the effectiveness of the remaining clauses shall not be affected thereby.
With the taking effect of these terms and conditions of delivery and payment as of 10/2019, all previous terms and conditions of delivery and payment shall cease to be valid.