General Terms and Conditions (GTC)

of Torgauer Maschinenbau GmbH for deliveries, assembly and repairs of machinery and equipment for domestic transactions

§ 1 General Provisions

These General Terms and Conditions shall apply to all our offers and contracts for deliveries and services, even if no further explicit reference is made to them at a later date. By accepting our offer or our order confirmation, the customer recognises them as legally binding for himself, even if his own terms and conditions are different, even if we do not expressly contradict them. Deviations from our terms and conditions must be agreed in writing and are only effective if they bear the signature of our management.
Our brochures and general documents are subject to change with regard to prices and delivery options. Orders placed by the customer shall only become binding for us if they have been confirmed to us in writing. The content of our confirmation is decisive for the business transaction.
Plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations and the like, always remain the intellectual property of TMB, under protection of the relevant legal provisions regarding reproduction, imitation, competition and know-how.
If software is included in the scope of delivery, TMB grants the customer a non-exclusive right to use the delivered software including its documentation. It shall only be provided for use on the delivery item intended for this purpose. The client is prohibited from using the software on more than one system.
The orderer may copy, revise, translate or convert the software from the object code into the source code only to the extent permitted by law (§§ 69 a ff. UrHG). The client undertakes not to remove manufacturer's information, in particular copy-ride notes, or to change them without the prior express consent of TMB.
All other rights to the software and the documentation, including copies, remain with TMB or the software supplier. The granting of sub-licences is prohibited.

§ 2 Prices and terms of payment

By placing the order, the customer confirms his solvency and creditworthiness.
Unless expressly agreed otherwise, the prices shall apply ex works excluding packaging, freight, value insurance and other expenses and plus the applicable value added tax.
Our price calculations are based on the assumption that the items on which the offer is based remain unchanged, that any necessary preparatory work or services of the customer have already been carried out in full and that we can provide our services without hindrance or interruption. Our offers are always based on the purchaser's performance description without knowledge of the local conditions. Unless otherwise agreed, payment shall be made to TMB on account without any deductions, namely:
- 1/3 deposit after receipt of the order confirmation
- 1/3 as soon as the customer has been informed that the delivery item or its main parts are ready for dispatch,
- the remaining amount within 30 days after transfer of risk.
In the case of a contract for work and services, we may demand reasonable down payments for the services rendered by us in accordance with the progress of assembly.
In the case of a purchase contract, payments are due at the latest upon handover of the delivery or service. A target sale requires agreement, whereby invoices are generally due without deduction no later than 30 days from the invoice date.
If a cash discount is agreed, the timeliness of the payment is only ensured if the payment is credited to the account specified in the invoice within the discount period.
Non-compliance with the terms of payment by the customer due to circumstances for which he is responsible or circumstances which become known after the respective conclusion and which are likely to reduce the creditworthiness of the customer shall result in the immediate maturity of all our claims without consideration of the term of any bills of exchange accepted, with the exception of claims due to which the customer has a right of retention according to clause 8. This shall also apply in particular if the customer is in default with his payment obligations from other orders. Non-compliance with the terms of payment also entitles us to refuse performance until advance payment or sufficient security has been provided or, after setting a period of grace, to withdraw from the contract or to claim damages for non-performance, without prejudice to the right to take back the goods delivered under retention of title.
If there is a period of more than four months between the order confirmation and the delivery date, any price changes for raw materials, consumables and supplies to be purchased by us that were not foreseeable by us at the time of the order confirmation may be charged to the customer. We are entitled to increase prices at any time as a result of an increase in the statutory sales tax or value added tax.

§ 3 Delivery, assembly and repairs

By placing the order, the customer confirms his solvency and creditworthiness.
Unless expressly agreed otherwise, the prices shall apply ex works excluding packaging, freight, value insurance and other expenses and plus the applicable value added tax.
Our price calculations are based on the assumption that the items on which the offer is based remain unchanged, that any necessary preparatory work or services of the customer have already been carried out in full and that we can provide our services without hindrance or interruption. Our offers are always based on the service description of the customer without knowledge of the local conditions.
Unless otherwise agreed, payment shall be made to TMB on account without any deductions:
- 1/3 deposit after receipt of the order confirmation
- 1/3 as soon as the customer has been informed that the delivery item or its main parts are ready for dispatch,
- the remaining amount within 30 days after transfer of risk.
In the case of a contract for work and services, we may demand reasonable down payments for the services rendered by us in accordance with the progress of assembly.
In the case of a purchase contract, payments are due at the latest upon handover of the delivery or service. A target sale requires agreement, whereby invoices are generally due without deduction no later than 30 days from the invoice date.
If a cash discount is agreed, the timeliness of the payment is only ensured if the payment is credited to the account specified in the invoice within the discount period.
Non-compliance with the terms of payment by the customer due to circumstances for which he is responsible or circumstances which become known after the respective conclusion and which are likely to reduce the creditworthiness of the customer shall result in the immediate maturity of all our claims without consideration of the term of any bills of exchange accepted, with the exception of claims due to which the customer has a right of retention according to clause 8. This shall also apply in particular if the customer is in default with his payment obligations from other orders. Non-compliance with the terms of payment also entitles us to refuse performance until advance payment or sufficient security has been provided or, after setting a period of grace, to withdraw from the contract or to claim damages for non-performance, without prejudice to the right to take back the goods delivered under retention of title.
If there is a period of more than four months between the order confirmation and the delivery date, any price changes for raw materials, consumables and supplies which we could not foresee at the time of the order confirmation may be charged to the customer.
We are entitled to increase prices at any time as a result of an increase in the statutory sales tax or value added tax.

§ 4 Retention of title

We reserve title to the delivered or manufactured item until payment has been made in full. The retention of title shall exist until all claims, including ancillary claims - also future claims from the business relationship - have been settled (current account reservation).
This shall also apply if the customer makes a payment for certain deliveries designated by him.
If our claim is over-secured, we undertake to release a corresponding part of the securities at the request of the client. The customer is obliged to sufficiently insure the delivery item against fire, water and other damage as long as the reservation of title exists and to prove this to TMB upon request. Insurance claims are already now assigned to us in the amount of the value of the goods.
In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, cessation of payments, application for insolvency proceedings or comparable proceedings or the opening of such proceedings, we shall be entitled to take back the goods. For this purpose, the customer shall allow us to enter his premises, land and building sites and to do everything necessary for the removal. The taking back as well as the seizure of the goods by us shall only constitute a withdrawal from the contract if we expressly declare this in writing. § Section 449 (2) of the German Civil Code is excluded in this respect.
The customer is entitled to resell and process the reserved goods in the ordinary course of business. He is not permitted to dispose of the goods in any other way, in particular by pledging them or assigning them as security.
The customer is prohibited from entering into agreements with his buyer which may exclude or impair TMB's rights in any way. In particular, the customer may not enter into any agreement that nullifies or impairs the advance assignment of claims to TMB.
Resale may only take place subject to retention of title. The right to resell shall lapse for the same reasons that entitle us to take back the goods in accordance with Clause 2.
The customer hereby assigns to us all claims and security interests accruing to him from the resale against his customer or against third parties, irrespective of whether the reserved goods are resold without or after processing. We accept the assignment. If the reserved goods are resold with other goods that do not belong to us, the advance assignment shall only apply to the amount of our value of the goods.
The customer shall remain authorised to collect the claims assigned to us even after the assignment. Our authority to collect the claim ourselves shall not be affected thereby. However, we undertake not to collect claims as long as the customer duly meets his payment obligations. We are entitled to demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors of the assignment.
If the purchaser sells the goods to a third party and the third party pays by cheque, the ownership of the cheque shall pass to us as soon as the customer acquires. If payment is made by cheque or by bill of exchange, the buyer hereby assigns to us the claims arising therefrom on account of performance. The handing over of these papers is replaced by the fact that the buyer keeps them for us or, if he does not acquire direct possession of them, hereby assigns to us in advance his claim for restitution against third parties. He shall provide these papers with his endorsement and deliver them to us without delay.
Acceptance of a cheque payment for the purchase price in the cheque/bill of exchange procedure does not constitute final fulfilment by the purchaser. All our rights to retention of title described here shall remain in force until they have been cashed and credited.
The processing or transformation of goods subject to retention of title or their installation is always carried out by the customer for TMB, without any obligations arising for us from this.
If these goods are processed or inseparably mixed or installed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of our goods to the rest. If our goods are combined or inseparably mixed with other items to form a uniform item and if the other item is to be regarded as the main item, TMB and the ordering party agree that the co-ownership arising for the ordering party as a result of the combining, processing or mixing shall pass to TMB at the moment at which it arises for the ordering party.
The handover of these goods shall be replaced by the fact that the customer shall keep the property or co-property for us free of charge. For the rest, the same shall apply to the object created by the processing or combination as well as mixing as to the goods subject to retention of title.
Insofar as the value of the goods subject to retention of title is taken as a basis, this shall be derived from our invoice amount, net (invoice value). We undertake to release the securities to which TMB is entitled at our discretion to the extent that their value exceeds the claim to be secured by more than 30 %.
The customer is prohibited from assigning the claims he acquires by resale as long as our claim against him has not been settled, unless we have given our written consent. This also applies to such agreements which nullify or impair the advance assignment. In the event of seizure or other interventions by third parties, the customer must notify us immediately in writing, handing over the documents necessary for an intervention.

§ 5 Warranty

Material defects
1. The Supplier shall be liable for defects in the delivery, which also include the absence of expressly warranted characteristics and the breach of warranty obligations, to the exclusion of further claims to the following extent:
  - TMB shall only be liable for its own products; any claims to which TMB is entitled against its sub-suppliers for third-party products shall be assigned to the customer.
  - No warranty is given in particular for unsuitable and improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent treatment, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless TMB is responsible for them, productivity expectations or performance parameters of the delivery item or product, unless expressly agreed in writing in the contract.
  - Liability shall only be assumed for damage directly occurring to the delivery item itself, but not for damage caused, for example, by the delivery item itself and its possibly defective construction or design, but in particular also by failure in operation. In all other respects § 6 shall apply.
  - Liability shall be towards the initial purchaser, but not towards third parties to whom the delivery item or the system has been resold.
  - Liability, irrespective of the delivery or service obligation, is limited to the repair or replacement of parts which, within 12 months of acceptance or intended commissioning, demonstrably become unusable or significantly impaired in their usability as a result of a circumstance occurring prior to the transfer of risk - in particular due to faulty design, poor construction materials or defective workmanship. TMB must be notified immediately in writing of the discovery of such defects. The customer shall give TMB the necessary time and opportunity to carry out the rectification.
  - No warranty is given for delivery items that are taken over as used or with a significant price reduction.
  - Warranty and guarantee claims shall lapse if the customer has carried out repairs or changes of any kind on the delivery, assembly or repair item himself without having given TMB the opportunity beforehand, or has had them carried out by others. This shall only not apply if there is an urgent case of danger to operational safety and the prevention of disproportionately large damage was to be feared, which must be proven by the customer.
  - Defects in the delivery item or the goods must be asserted in writing to TMB immediately after receipt.
  - Returns on the part of the customer to TMB will only be accepted if a written agreement has been made in advance.
2. In the event of a definitive failure of the repair or replacement delivery, the Purchaser may demand a reduction of the remuneration (abatement) or, at its option, rescission of the contract or compensation for damages subject to the restrictions and limitations set out in § 6 (Liability).
Legal defects
- If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, TMB shall, at its own expense, generally procure the right for the client to continue using the delivery item or modify the delivery item in a manner that is reasonable for the client so that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the client shall be entitled to withdraw from the contract. Under the aforementioned conditions, TMB shall also be entitled to withdraw from the contract. Furthermore, TMB shall indemnify the buyer from undisputed or legally established claims of the respective property right holders. The aforementioned obligations of TMB are conclusive in the case of infringements of industrial property rights or copyrights. They shall only exist if
  - the customer informs TMB immediately of any asserted infringements of industrial property rights or copyrights,
  - the customer supports TMB to a reasonable extent in the defence against the asserted claims or enables TMB to carry out the aforementioned modification measures,
  - TMB reserves the right to all defensive measures including out-of-court settlements,
  - the defect of title is not based on an instruction of the Purchaser and
  - the infringement of rights was not caused by the fact that the Purchaser modified the delivery item without authorisation or used it in a manner not in accordance with the contract.

§ 6 Liability

A claim by the customer for damages due to non-performance, failure of rectification, delay in delivery or performance as well as violation of the rectification or subsequent delivery deadline is excluded, unless TMB can be proven to have acted with intent or gross negligence.
In the event of a delay in delivery, assembly or repair for which TMB is responsible and any damage incurred by the client as a result thereof, the following shall apply: The client shall be entitled to demand a lump-sum compensation for delay, limited to 0.5 % for each full week of delay, but in total to a maximum of 5 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay, or 5 % of the assembly price for that part of the system to be assembled by TMB which cannot be used on time as a result of the delay.
If the delivery item or the assembled or repaired item cannot be used by the client in accordance with the contract due to TMB's fault as a result of omitted or faulty execution of suggestions and consultations made before or after conclusion of the contract or due to the breach of other contractual collateral obligations - in particular instructions for operation and maintenance of the delivery item, assembly item or repair item - the provisions according to § 5 and 6 item 4 shall apply accordingly, excluding further claims of the client.
For damage that has not occurred to the object of delivery, assembly and repair itself, TMB is liable - for whatever legal reasons - only
- in the case of intent,
- in the event of gross negligence on the part of the owner/the executive bodies or senior employees,
- in the event of culpable injury to life, limb or health,
- in the case of defects which have been fraudulently concealed or the absence of which has been guaranteed,
- in the event of defects in the delivery item, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used items.
In the event of culpable breach of essential contractual obligations, however, TMB's liability shall be limited to reasonably foreseeable damage typical for the contract. Further claims are excluded.
Insofar as TMB is obliged to pay damages, the amount of the client's claims for compensation shall be limited to the value of the delivery or the simple order value. For each case of damage to property and personal injury, TMB's liability shall be limited to a sum of € 3,000,000.00 and for each case of financial loss to € 100,000.00.

§ 7 Limitation

All claims of the client - for whatever legal reasons, in particular also claims arising from defects or non-fulfilled warranty - shall become statute-barred after 12 months. The statutory periods shall apply to claims for compensation for damage that has not occurred to the delivery item itself and for which TMB is liable in accordance with § 6 no. 4 a) - e). They shall also apply to defects in a building or to delivery items that were used for a building in accordance with their usual manner of use and caused its defectiveness.

§ 8 Prohibition of assignment and set-off

All claims arising from the contractual relationship are not transferable by the customer without our written consent.
Offsetting against our claims can only be declared with undisputed or legally established counterclaims. A right of retention from earlier or other transactions of the current business relationship cannot be asserted. Sentence 1 shall apply accordingly to the exercise of the right of retention.

§ 9 Place of performance and jurisdiction

The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship, including bill of exchange, cheque and document proceedings, is our registered office.

This shall also apply if a party to the contract does not have a general place of jurisdiction in the Federal Republic of Germany, if a party to the contract moves its place of residence or habitual abode outside the Federal Republic of Germany after conclusion of the contract or if its place of residence or habitual abode is not known at the time of the procedural assertion of the claim and, in the case of contracts with non-merchants, in the event that claims are asserted by way of judicial dunning proceedings.

TMB shall, however, be entitled to take legal action at the client's principal place of business. All legal relations between TMB and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties.

Status September 2002

Torgauer Maschinenbau GmbH
Managing Director: Eckhard Knöchelmann
Registered office: Solarstraße 29, 04860 Torgau
District Court: Leipzig City HRB 3887