General Terms and Conditions

of Torgauer Maschinenbau GmbH for deliveries, assemblies and repairs of machines and plants for domestic transactions

Table of contents

§ 1 General provisions

  1. These General Terms and Conditions shall apply to all our offers and contracts for deliveries and services, even if a reference is not expressly made later. By accepting our offer or our order confirmation, the customer recognizes 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.
  2. 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.
  3. Plans, sketches and other technical documents as well as samples, catalogs, brochures, illustrations and the like always remain intellectual property of TMB, under protection of the relevant legal regulations concerning duplication, imitation, competition and know-how.
  4. As far as 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 is only provided for use on the delivery item intended for this purpose. The use of the software on more than one system is forbidden to the orderer.
    The orderer may copy, revise, translate or convert the software from the object code into the source code only in the legally permissible scope (§§ 69 a ff. UrHG). The orderer commits himself not to remove manufacturer's data, in particular copy-ride notes or to change them without previous express agreement of TMB.
    All other rights to the software and the documentations including the copies remain with TMB or the software supplier. The granting of sublicenses is prohibited.

§ 2 Prices and terms of payment

  1. By placing the order, the customer confirms his solvency and creditworthiness.
  2. 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.
  3. 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 fully performed and that we can perform our services without hindrance or interruption. Our quotations are based in each case on the purchaser's performance description without knowledge of the local conditions. Unless otherwise agreed, payment is to be made to TMB without any deduction on account, namely:
    • 1/3 deposit upon receipt of order confirmation
    • 1/3 as soon as the customer has been informed that the delivery item or its main parts are ready for shipment,
    • the remaining amount within 30 days after transfer of risk.
  4. In the case of a contract for work and services, we shall be entitled to demand reasonable advance payments for the services rendered by us in accordance with the progress of assembly.
  5. 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.
  6. If a cash discount is agreed, the timeliness of the payment shall only be ensured if the payment is credited to the account specified in the invoice within the cash discount period.
  7. 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 in accordance with Clause 8. This shall also apply in particular if the customer is in default with his payment obligations from other orders. Failure to comply with the terms of payment shall also entitle us to refuse performance until advance payment or sufficient security has been provided, or to withdraw from the contract after setting a period of grace or to claim damages for non-performance, without prejudice to the right to take back the goods delivered under retention of title.
  8. 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 shall be 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

  1. By placing the order, the customer confirms his solvency and creditworthiness.
  2. 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.
  3. 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 fully performed and that we can perform our services without hindrance or interruption. Our quotations are based in each case on the purchaser's performance description without knowledge of the local conditions.
    Unless otherwise agreed, payment shall be made to TMB without any deduction on account, namely:
    • 1/3 deposit upon receipt of order confirmation
    • 1/3 as soon as the customer has been informed that the delivery item or its main parts are ready for shipment,
    • the remaining amount within 30 days after transfer of risk.
  4. In the case of a contract for work and services, we shall be entitled to demand reasonable advance payments for the services rendered by us in accordance with the progress of assembly.
  5. 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.
  6. If a cash discount is agreed, the timeliness of the payment shall only be ensured if the payment is credited to the account specified in the invoice within the cash discount period.
  7. 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 in accordance with Clause 8. This shall also apply in particular if the customer is in default with his payment obligations from other orders. Failure to comply with the terms of payment shall also entitle us to refuse performance until advance payment or sufficient security has been provided, or to withdraw from the contract after setting a period of grace or to claim damages for non-performance, without prejudice to the right to take back the goods delivered under retention of title.
  8. 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

  1. We retain 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 Purchaser makes a payment for certain deliveries designated by him.
    In case of over-securing of our claim, we undertake to release a corresponding part of the securities at the request of the customer. The orderer is obliged to insure the delivery item sufficiently against fire, water and other damages as long as retention 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.
  2. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, cessation of payments, application for insolvency proceedings or similar 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 of the goods. 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
  3. The purchaser 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 forbidden to make any agreements with his buyer which may exclude or impair the rights of TMB in any way. In particular, the customer may not make any agreement which nullifies or impairs the advance assignment of the 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.
  4. 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 goods subject to retention of title are resold together with other goods that do not belong to us, the advance assignment shall only apply to the amount of our value of the goods.
  5. The customer shall remain authorized 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 shall be entitled to demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and notify the debtors of the assignment.
  6. If the customer sells the goods to a third party and the third party pays by check, the ownership of the check is transferred to us as soon as the customer acquires. If payment is made by cheque or by bill of exchange, the purchaser hereby assigns to us any claims arising therefrom on account of performance. The handing over of these papers shall be replaced by the fact that the buyer shall keep them for us or, if he does not acquire direct possession of them, hereby assigns to us in advance his claim for surrender against third parties. He shall provide these papers with his endorsement and deliver them to us without delay.
  7. Acceptance of a check payment for the purchase price in the check/bill of exchange procedure does not constitute final fulfillment by the purchaser. All our rights to retention of title described here shall remain in force until they have been cashed and credited.
  8. 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 objects to form a uniform object and if the other object is to be regarded as the main object, TMB and the customer agree that the co-ownership arising for the customer as a result of the combining, processing or mixing shall pass to TMB at the moment at which it arises for the customer.
    The handing over of these goods is replaced by the fact that the purchaser keeps the property or co-property for us free of charge. For the rest, the same shall apply to the object resulting from the processing or combination as well as mixing as to the goods subject to retention of title.
  9. As far as the value of the goods subject to retention of title is taken into account, it results 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%.
  10. 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 shall also apply to such agreements which nullify or impair the advance assignment. In the event of seizure or other interventions by third parties, the customer shall notify us immediately in writing, handing over the documents necessary for an intervention.

§ 5 Warranty

  1. Material defects
    1. The Supplier shall be liable for defects in the delivery, which shall 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 is only liable for its own products, possible claims which TMB is entitled to against its sub-supplier for third party products are 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 design or execution, 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.
      • The liability, regardless of the delivery or service obligation, is limited to the repair or new delivery of parts which, within 12 months of acceptance or intended commissioning, are demonstrably unusable or significantly impaired in their usability as a result of a circumstance prior to the transfer of risk - in particular due to defective design, poor construction materials or defective execution. 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.
      • The warranty and guarantee claims are void 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 does not apply only if there is an urgent case of danger to the operational safety and the prevention of disproportionately large damage was to be feared, which must be proven by the customer.
      • Defects at the delivery item or the goods are to be claimed immediately after receipt in writing to the company TMB.
      • 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 forth in § 6 (Liability).
  2. 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 customer to continue using the delivery item or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of property rights no longer exists. If this is not possible at economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Under the mentioned conditions TMB is also entitled to withdraw from the contract. Furthermore, TMB shall indemnify the customer against undisputed or legally established claims of the owners of the property rights concerned. The mentioned obligations of TMB are conclusive for the case of infringements of industrial property rights or copyrights. They exist only if
      • the customer informs TMB immediately of asserted infringements of industrial property rights or copyrights,
      • the customer supports TMB to a reasonable extent in the defense against the asserted claims or enables TMB to carry out the mentioned 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 has not been caused by the fact that the Purchaser has modified the delivery item without authorization or has used it in a manner not in accordance with the contract.

§ 6 Liability

  1. A claim of the customer for damages due to non-fulfillment, failure of rectification, delay of delivery or service as well as violation of the rectification or subsequent delivery period is excluded, unless TMB can be proven to have acted intentionally or with gross negligence.
  2. In case of a delay of delivery, assembly or repair caused by TMB and a damage resulting from this for the customer, the following applies: The customer is entitled to demand a lump-sum compensation for delay, limited to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used in time or according to the contract as a result of the delay, or 5% of the assembly price for that part of the plant to be assembled by TMB which cannot be used in time as a result of the delay.
  3. If the delivery item or the assembled or repaired item cannot be used by the customer according to 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 violation of other contractual collateral obligations - in particular instructions for operation and maintenance of the delivery item, assembly item or repair item - the regulations according to § 5 and 6 No. 4 shall apply accordingly under exclusion of further claims of the customer.
  4. For damages, which did not occur at the delivery, assembly and repair object itself, the TMB is liable - for whatever legal reasons - only
    • in 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 exists under the Product Liability Act for personal injury or property damage to privately used items.
  5. In case of culpable violation of essential contractual obligations, however, TMB's liability is limited to the reasonably foreseeable damage typical for the contract. Further claims are excluded.
  6. As far as TMB is obliged to pay damages, claims for compensation of the customer are limited to the value of the delivery or the simple order value. For each case of material damage and personal injury the liability of TMB is limited to a sum of 3.000.000,00 € and for each case of financial loss to 100.000,- €.

§ 7 Limitation

All claims of the customer - for whatever legal reasons, in particular also claims arising from defects or non-fulfilled warranty - shall become statute-barred after 12 months. For claims for compensation in case of damages which did not occur on the delivery item itself and for which TMB is liable according to § 6 No. 4 a) - e), the legal time limits apply. They are also valid for defects of a building or for delivery items which have been used for a building according to their usual use and have caused its defectiveness.

§ 8 Prohibition of assignment and set-off

  1. All claims arising from the contractual relationship are not transferable by the customer without our written consent.
  2. 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, check 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 relocates its domicile or usual place of residence outside the Federal Republic of Germany after conclusion of the contract or if its domicile or usual place of residence is unknown 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.

However, TMB is entitled to take legal action at the head office of the customer. For all legal relations between TMB and the customer, the law of the Federal Republic of Germany, which is decisive for the legal relations between domestic parties, shall apply exclusively.

Status Januar 2022

Torgauer Maschinenbau GmbH
Managing Director: Torsten Sommer
Registered office: Solarstraße 29, 04860 Torgau
Leipzig Local Court, HRB 3887