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General delivery conditions (GDC) of Thyssen Schachtbau GmbH

1. General, scope

1.1 The following GDC constitute a fundamental part of the Thyssen Schachtbau GmbH supply and service agreements. They shall be applicable in relations with companies, legal entities under public law and public-sector funds (purchasers).

1.2 In accepting these terms and conditions without objection the Purchaser agrees to these conditions being exclusively valid for the order in question and for any follow-up transactions. In the event of an agreement of different terms and conditions for a certain order, the present terms and conditions remain subordinate and complementary.

1.3 The validity of any deviating General Terms and Conditions of the Purchaser shall also be excluded even if these have been transmitted to us in a letter of confirmation or in some other way.

2. Offer, offer documents

2.1 Our offers are non-binding, unless otherwise stated.

2.2 Our written confirmation of order shall determine the type and scope of our performances. In the case of a time-limited offer and its acceptance by the Purchaser within the stipulated term our offer shall be deemed to apply. Contracts and other agreements shall only become binding when confirmed in writing by us. This shall also apply to any verbal agreements and/or guarantees.

2.3 The documents attached to our orders, such as for example figures, drawings, weight specifications and dimensions, shall only be deemed to be approximate, unless they have been expressly designated as binding.

2.4 All figures, drawings, models, samples, calculations and other items prepared in connection with the order, and particularly those documents designated as ‘confidential’, shall remain our property; this also applies to our copyright and other industrial rights. Any reproduction or disclosure to third parties requires our prior written consent.

3. Prices, payment and settlement

3.1 Unless otherwise agreed upon in writing, our prices are quoted ‘ex stock’ or ’ex works’, including loading and excluding packing. They are exclusive of the statutory value added tax.

3.2 Unless otherwise agreed in writing, our invoices are payable to our designated payments office immediately on receipt of invoice without any deductions.

3.3 The Purchaser may only offset or hold back payments with respect to claims that have been confirmed in writing or legally established.

3.4 Insofar as the Purchaser fails to observe the agreed periods allowed for payment or insofar as there are prevailing circumstances which, if usual banking standards are applied, indicate a significant deterioration in the Purchaser’s financial circumstances and/or creditworthiness, we shall be entitled, after the unsuccessful expiry of a reasonable period of grace, to execute outstanding deliveries and performances only in return for advance payment or the provision of standard banking collateral, or in the case of default to withdraw from the contract or to demand damages in place of the performances. We shall in addition be entitled to forbid the resale of products on the basis of our retention of title (clause 6).

4. Delivery times

4.1 Delivery times are considered to be approximate, unless they have been expressly agreed in writing as binding.

4.2 Adherence to the date of delivery presumes the proper fulfilment of all contractual duties by the Purchaser.

4.3 The period allowed for delivery begins with the sending of our confirmation of order, though not before the provision of the documents, approvals and releases to be procured by the Purchaser and not before the receipt of an agreed down-payment. The deadline is met if, at the expiration of the time limit, the delivery item has left our works or the Purchaser has been notified that the goods are ready for dispatch.

4.4 The delivery period shall be extended appropriately in case of force majeure and any unpredictable events for which we cannot be held answerable, insofar as such obstacles have a demonstrable influence on the completion or delivery of the items in question, such as production stoppages, strikes, transport disruptions, lack of materials, power cuts or the excusable failure of important tools or workpieces. This also applies in the event that similar circumstances arise at our sub-suppliers or their suppliers. Neither shall we be liable in the circumstances described above if such circumstances arise during a delay that has already occurred. We undertake to notify the Purchaser as soon as possible as to the beginning and end of such hindrances.

4.5 In the event that delivery is delayed at the Purchaser’s request, we shall be entitled, commencing one month after having announced our readiness to deliver, to invoice the storage costs incurred, including those incurred at one of our own works, to the value of at least 0.5% of the invoice value of the goods or, in the case of partial performances, of the proportionate invoiced amount for each month. We also reserve the right to make further claims; the Purchaser shall be free to prove that no, or considerably less, damage has been incurred as a result of the delay.

4.6 In the cases covered under clause 4.4 we shall also be entitled, upon unsuccessful expiration of an appropriate grace period, to dispose of the goods otherwise and to effect delivery to the Purchaser within a reasonably extended period.

5. Transfer of risk

5.1 The price risk (transfer of risk) passes to the Purchaser at the latest on dispatch of the goods in question, and even in those cases where we have taken-on additional performances, such as shipping costs and/or delivery and/or installation and set-up. The same also applies to partial performances. At the Purchaser’s request we shall arrange insurance to cover theft, breakage, damage in transit, damage due to fire and water and other insurable risks.

5.2 In the event that delivery is delayed due to circumstances that the Purchaser is responsible for, the risk shall be transferred to the Purchaser from the day on which he has been notified that the goods are ready for dispatch. However we are obliged, at the request and expense of the Purchaser, to take out the relevant insurances that the latter has requested in accordance with clause 5.1.

5.3 The Purchaser can only refuse to accept our services in the case of significant deficiencies, notwithstanding his rights under clause 7.

5.4 Partial performances are permissible.

6. Retention of title

6.1 The goods remain our property (goods subject to retention of title) until all claims resulting from the business relationship with the Purchaser have been settled, whatever their legal basis, including future or contingent receivables, even those resulting from contracts concluded at the same time or at some later date. This shall also apply in the case of payments made on specially designated claims. We shall only be entitled to repossess or seize the said goods in the event of the contract being rescinded.

6.2 The processing and handling of the goods under reservation of title shall be performed by us as manufacturers under the terms of § 950 of the German Civil Code, but without liability being assumed by us. The processed and handled goods are considered to be goods under reservation of title within the meaning of these provisions. If the reserved-title goods are processed or inseparably combined with other goods that do not belong to us, we shall acquire co-ownership of the new item created in the ratio of the value of the reserved-title goods to that of the other goods at the time of processing or combination. If our reserved-title goods are incorporated or inseparably combined with other moveable goods into one unified item, and if the later is considered as the main item, the Purchaser shall assign co-ownership thereof to us on a pro rata basis to the extent that the main unit belongs to him.

6.3 The Purchaser may neither pledge nor assign by way of security the reserved-title goods without our prior written consent. The Purchaser shall notify us immediately in writing in the event of seizures or other interventions by third parties. The Purchaser is entitled to re-sell the reserved-title goods within the ordinary course of business. Re-sale shall be deemed equivalent to the installation of the reserved goods in real estate or in systems attached to buildings, or their re-use for the performance of other contracts. 
The Purchaser shall hereby assign to us all claims to the amount of the invoice value of the reserved-title goods accrued to him from the further sale of the said goods to a customer or third party. Where the reserved-title goods are being sold by the Purchaser together with other items not supplied by us, the transfer of the claim from the re-sale applies only to the amount of the re-sale value of the reserved goods as stated in our invoice. In the case of re-sale of items over which we have co-ownership according to clause 6.2 the assignment of the claim shall apply to the amount of the co-owner’s share. Assigned claims due shall serve as security to the same extent as the reserved-title goods.

6.4     The Purchaser is entitled to collect accounts receivable from a re-sale until 
such time as this is revoked by us. The Purchaser is not entitled under any circumstances to any other transfer of claims. He shall be required, upon request, to notify his customers about this assignment and to provide us with all the information and documentation required for the assertion of the claims.

6.5 If the value of all collaterals held by us exceeds our claims by more than 20%, we shall be required, at the Purchaser’s request, to release securities at our choice to that amount.

6.6 We are entitled to insure the reserved-title goods against theft, breakage, fire and water damage and other damages, at the cost of the Purchaser, unless the Purchaser has himself demonstrably taken out such insurance cover.

7. Warranty, liability, period of declaration for the Purchaser

7.1 Warranty claims by the Purchaser imply that he has duly complied with his legal obligation of inspection and complaint; any deficiencies must be reported to us in writing as soon as possible.

7.2 In the event that our performances exhibit defects we can, at our choice, remedy the fault or supply a non-defective replacement. Only when this has failed repeatedly, or if it should prove unreasonable, and if the defects are substantial in nature, shall the Purchaser be entitled to withdraw from the contract or to receive reductions in price, in accordance with the relevant legislative provisions; he shall be entitled to claims for compensation in accordance with clause 7.6ff.

7.3 The Purchaser is required to allow us sufficient time and opportunity for the rectification of defects and/or replacement performances. The Purchaser shall only be entitled to rectify the defects himself (own action) in cases of urgency, such as when his operational safety is at risk or in order to prevent disproportionately large damage, or if attempts to provide supplementary performance have repeatedly failed or if supplementary performance would not be reasonable. Where a complaint or own action is proved justified we shall bear all reasonable costs associated with the rectification of the fault. Rights emanating from § 478 paragraph 2 of the German Civil Code remain unaffected.

7.4 No warranty is provided for damage resulting from any of the following causes:
improper or inappropriate use; faulty installation or assembly and/or initial operation on the part of the Purchaser or third parties; natural wear and tear; improper or negligent handling, inappropriate operating materials, substitute materials; deficient construction work, unsuitable subsoil, chemical, electrochemical or electrical influences, unless we are responsible for these. The same applies in the event that the Purchaser or a third party performs modifications or repairs to the item in question without our prior consent.

7.5 The warranty period amounts to 12 months, calculated from the transfer of risk. This period is a limitation period and also applies to claims for reimbursement for consequential damages. The same shall apply for defects in title. In the case of claims arising from unauthorised actions the legal statutory period of limitation shall prevail. Where the performance is intended for a building and has caused the latter’s structural defect the warranty period shall be 5 years. The provisions of §§ 438 paragraph 3, 479 and 634 a paragraph 3 of the German Civil Code remain unaffected.

7.6 For all claims for damages and reimbursement of expenses directed against us and based on breach of duty, irrespective of the legal basis, we may be held liable in the case of minor negligence only if major contractual duties have been breached. In other respects our liability for minor negligence is excluded.

7.7 In the event of liability as defined in clause 7.6 and liability without fault we shall only be held liable for typical and foreseeable damages. The Purchaser shall not be permitted to make a claim for unproductive expenses. We are not liable for production downtimes, loss of profit or any other indirect damages.

7.8 Compensation for other damage to property and pecuniary damages shall be limited in amount according to our contractually agreed remuneration.
If additional damage to property and pecuniary damages are caused by our own performance, and if our performance relates to subcontracting for services that the Purchaser is performing for a third-party client, we shall be liable only up to the amount of one tenth of the share corresponding to our portion of the overall performance undertaken by the Purchaser for the third-party client.

7.9  The foregoing limitations of liability shall apply to the same extent in favour of our  various agencies, legal representatives, managerial and non-managerial employees and other auxiliary persons and agents.

7.10 The foregoing limitations of liability shall not apply if a liability exists for injury to life, limb or health, where a quality guarantee has been provided or where there has been malicious concealment of a defect.

7.11 Where the Purchaser is entitled to demand compensation in lieu of performance, or to withdraw from the contract, he shall be obliged, at our request, to state within an appropriate period of time whether and in what manner he intends to exercise these rights. Should he fail to declare his intentions within this period, or if he demands performance of the obligations, he shall be entitled to exercise these rights only after the unsuccessful expiry of a reasonable grace period. Should it emerge for us, in the course of such a grace period as set by the Purchaser, that we are unable to meet the set period, the aforesaid shall apply accordingly.

8. Place of jurisdiction, applicable law

8.1 For any disputes that may arise from this contractual relationship, where the Purchaser is classified as a fully qualified merchant, a legal entity under public law or a public-sector fund, or if he has his registered office outside the Federal Republic of Germany, our company’s head offices shall be the sole place of jurisdiction. We shall however also be entitled to bring an action at the place of the registered office of the Purchaser.

8.2 The contract governing legal relations between domestic contracting parties is subject to the national law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

Stand: März 2010
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