General Terms and Conditions and Client Information

Scope of Application, Validity
Conclusion of Contract, Documents, Intellectual Property Rights, Tools
Scope of Services
Delivery Terms and Delivery Time
Retention of Title
Prices and Payment
Warranty (Claims for Defects)
Liability (Claims for Damages) and Statute of Limitations
Compliance, Recalls, and Foreign Trade Law
Place of Performance, Jurisdiction, Other Agreements

1) Scope of Application, Validity

1.1 These General Terms and Conditions of Delivery and Payment (“GTC”) of TriboServ GmbH & Co. KG, Gelthari-Ring 3, 97505 Geldersheim, Germany (“we” or “us”), apply to all our offers, contracts, deliveries, and other services, including related ancillary services (hereinafter collectively: “Delivery(ies)”; in the case of physical delivery items, also “Goods”) to or with entrepreneurs (Section 14 of the German Civil Code (BGB)), legal entities under public law, or special funds under public law (hereinafter collectively: “Customers”). The GTC shall also serve as a framework agreement for all future business relationships with and deliveries to Customers, even if they are not expressly agreed upon again.

1.2 The GTC shall be deemed accepted upon the Customer’s placement of an order or, at the latest, upon the Customer’s acceptance of the delivery. We hereby expressly object to any conflicting or supplementary terms and conditions of our Customer; such terms and conditions shall apply only in the event of our express written acceptance. Even in the event of unconditional fulfillment of the delivery, as well as in the event of our participation in the Customer’s electronic platforms or other electronic/automated procedures and the associated activation of selection fields required by the system, this does not constitute a legally binding acceptance of the Customer’s Terms of Use or other General Terms and Conditions.

1.3 References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions therefore apply to the extent that they are not directly amended or expressly excluded in these GTC.

1.4 The invalidity of individual provisions of these Terms and Conditions shall not affect the validity of the remaining provisions.

1.5 Individual agreements made with the customer on a case-by-case basis (including ancillary agreements, supplements, and amendments) shall in any case take precedence over these GTC. The content of such agreements must be put in writing for evidentiary purposes.

2) Conclusion of Contract, Documents, Intellectual Property Rights, Tools

2.1 Our offers are subject to change and non-binding; in particular, we reserve the right to change products, prices, and other terms and conditions. A contract is concluded only when we confirm the customer’s order in writing. Our written order confirmation is the sole basis for determining the timing, nature, and scope of our delivery. If an order is placed for only part of the total offer, prices must be requested anew. If we do not confirm the order in writing, the contract is concluded at the latest upon execution of the order, subject to our GTC. We hereby note that our employees or representatives entrusted with the performance of deliveries are not authorized to make verbal side agreements or give verbal assurances that go beyond the content of agreements already made. Accordingly, such telephone or verbal statements by our employees and representatives require our express written confirmation to be legally effective.

2.2 Acceptance of an offer—as well as any delivery—is subject to the condition that no obstacles to contract performance exist due to national or international regulations of foreign trade, chemical, or environmental law, nor any embargoes (and/or other sanctions) (see also Section 9).

2.3 We reserve ownership and any intellectual property rights, in particular copyright, in cost estimates, drafts, drawings, models, samples, concepts, designs, and other documents. These offer documents may not be altered and may only be made available to third parties with our consent; they must be returned upon request at any time and in any case if the order is not placed with us.

2.4 If we have delivered goods based on drawings, models, samples, or other documentation provided by the customer, the customer warrants that (i) no third-party intellectual property rights are infringed, (ii) the customer’s products based on such materials comply with applicable legal requirements, in particular product safety regulations, and (iii) all necessary approvals have been obtained. If third parties prohibit us (e.g., by invoking intellectual property rights or other legal violations) from supplying the customer, we are entitled—without being obligated to examine the legal situation—to cease all further activities in this regard and to claim damages in accordance with statutory provisions (see also Section 3 ). The customer further undertakes, within the scope of its liability, to immediately indemnify and hold us harmless from all third-party claims arising in connection with the specifications and documents provided by the customer.

2.5 We are entitled to procure the materials for the entire order and to manufacture the entire order quantity immediately. Any requests for changes by the customer can therefore no longer be accommodated after the order has been placed, unless this has been expressly agreed upon.

3) Scope of Services

3.1 The nature of the delivered items and deliveries is definitively determined by expressly agreed performance characteristics (e.g., specifications, markings, approvals, other details). A warranty or guarantee for a specific intended use or suitability, service life, durability, functionality, compatibility, other subjective or objective requirements, or conformity with samples or specimens is assumed only to the extent that this is expressly agreed in writing; otherwise, the risk of suitability and use rests exclusively with the customer. We are not obligated to provide deliveries with any quality other than that agreed upon. We reserve the right to make minor, legally required, or technically—particularly metrologically—unavoidable deviations from physical and chemical parameters, including colors, formulations, chemical composition, processes, and the raw materials used, provided this is not unreasonable for the customer.

3.2 Information regarding delivery items (e.g., in catalogs, product information, electronic media, or on labels) is based on our general experience and knowledge and represents only guidelines or specifications, but not warranties or guarantees. Neither this information nor expressly agreed performance characteristics or intended uses relieve the customer of the obligation to test the product’s suitability for its intended use.

3.3 Information regarding the nature, durability, and possible uses of our delivered goods does not constitute any guarantees, in particular not under Sections 443 and 444 of the German Civil Code (BGB), unless such information is expressly designated as such in writing.

3.4 Where specifications are provided, all deliveries (including samples) shall comply with the specified values. For novel delivery items, the stated analytical values represent only typical values intended to serve as a product description. All samples are non-binding type samples.

4) Delivery Terms and Delivery Time

4.1 Delivery time estimates are—even if a delivery date has been agreed upon with the customer—only approximate and non-binding, unless the delivery date has been expressly agreed upon in writing as fixed, i.e., it has been specified in writing that the customer will no longer have any interest in the delivery after the date has passed. The delivery period is deemed met if the delivery item has left our factory by the end of the period or if we have notified the customer that the item is ready for shipment. The delivery period does not begin to run until the customer has duly fulfilled their obligations and duties, such as providing technical data and documentation, product approvals in accordance with agreed processes for initial sampling, permits, as well as any agreed down payment or the provision of a payment guarantee.

4.2 We are entitled to make partial deliveries, provided this is not unreasonably for the customer.

4.3 If we are unable to meet bindingly agreed delivery deadlines for reasons beyond our control, we will inform the customer immediately and simultaneously notify them of the expected new delivery deadline. If the delivery is not available even within the new delivery period, both parties are entitled to withdraw from the contract in whole or in part; in the event of withdrawal, we will immediately refund any consideration already provided by the customer. In this context, a case of non-availability of the service shall include, in particular, the failure of our supplier to deliver to us on time, provided that we have entered into a corresponding covering transaction to the extent customary in the industry, neither we nor our supplier are at fault, and we have not assumed any special procurement risk in the individual case. Our liability pursuant to Section 8 remains unaffected.

4.4 We are not obligated to accept returns of goods that have been sold but are free of defects.

4.5 An application to open insolvency proceedings or comparable proceedings under foreign law, the submission of a statement of financial circumstances, the occurrence of payment difficulties, or the disclosure of a material deterioration in the customer’s financial interests entitle us to suspend deliveries and refuse to fulfill ongoing contracts, unless the customer provides consideration in advance or, at our request, provides adequate security.

4.6 Delivery and transfer of risk shall take place “Ex Works” (EXW INCOTERMS 2020), unless otherwise expressly agreed, which shall also be the place of performance (including for any subsequent performance).

4.7 In our commercial invoices regarding deliveries, we limit ourselves to information required under foreign trade law, such as the commercial origin of goods and the statistical commodity code. Generally, we do not issue long-term supplier’s declarations with preferential origin status. The importation of goods is subject to non-preferential origin. Such proof of origin generally does not confer any customs benefits.

5) Retention of Title

5.1 Until all of our current and future claims against the customer arising from deliveries and the ongoing business relationship (hereinafter: “secured claims”), including contingent and ancillary claims, have been settled in full, we reserve title to the goods delivered to the customer (hereinafter: “goods subject to retention of title”). If registration of the retention of title in a public registry is required or if the validity of the retention of title otherwise requires the customer’s cooperation, the customer undertakes to perform the necessary acts of cooperation at its own expense. In the case of an open account, the retained title serves as security for our balance claim.

5.2 The customer shall treat the goods subject to retention of title with the care of a prudent businessman and is obligated to insure them adequately against fire, burglary, and other customary risks at their own expense. The goods subject to retention of title may neither be pledged to third parties nor transferred as security prior to full satisfaction of the secured claims. The customer must notify us immediately in writing if and to the extent that third parties (e.g., through attachments) seek to seize the goods subject to retention of title.

5.3 In the event of the Customer’s breach of contract, in particular failure to pay the purchase price when due, we are entitled to withdraw from the contract in accordance with statutory provisions and/or to demand the return of the goods subject to retention of title on the basis of the retention of title. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right to withdraw. If the customer fails to pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment or if setting such a deadline is dispensable under statutory provisions.

5.4 The customer is entitled, until further notice (see below under lit. c), to sell and/or process or mix the goods subject to retention of title within the scope of their ordinary business operations. The sale is equivalent to the customer’s use of the goods to fulfill contracts for work and services or contracts for work and materials. In these cases, the following provisions apply in addition:

The retention of title extends to the products created by the processing, mixing, or combining of the goods subject to retention of title to their full value, whereby we are deemed the manufacturer. If, in the event of processing, mixing, or combining with third-party goods, the third party’s right of ownership remains in effect, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same provisions apply to the resulting product as to the goods subject to retention of title.
The customer hereby assigns to us, as security, the claims against third parties arising from the resale of the goods subject to retention of title or the product manufactured therefrom, in the amount of our potential co-ownership share in accordance with the preceding subparagraph (a). We accept the assignment. The customer’s obligations set forth in Section 5.2 shall apply mutatis mutandis also with respect to the assigned claims.
The Customer remains authorized, alongside us, to collect the claim. We undertake not to revoke the Customer’s authority to resell or collect the receivables as long as the Customer (i) does not fall into default, in whole or in part, with respect to the fulfillment of the secured payment obligations toward us, (ii) is not experiencing financial difficulties due to a material deterioration in its financial circumstances, and (iii) duly fulfills its other contractual obligations to us. In the event of revocation, the customer is obligated, upon our first written request, to inform us of the debtors of the assigned claims, to provide all necessary documentation in this regard, and to notify the debtors of the assignment.

5.5 If the realizable value of the existing collateral exceeds the nominal value of our claims against the customer by more than 10%, we shall release collateral of our choice at the customer’s request.

6) Prices and Payment

6.1 Our prices are quoted in EUR and apply to delivery EXW INCOTERMS 2020 (agreed place of delivery), plus applicable sales tax and any transportation and packaging costs that may apply. In the case of permissible partial deliveries, each delivery may be invoiced separately. If no prices were agreed upon at the time of contract conclusion, our prices valid on the date of contract conclusion shall apply.

6.2 Unforeseen changes in raw material, labor, energy, and other costs for which we are not responsible entitle us to make corresponding price adjustments.

6.3 Our invoices are due immediately and payable without deduction.

6.4 We are not obligated to accept bills of exchange, checks, or other promises of payment; their acceptance is always on account of performance.

6.5 The date of receipt of payment shall be the day on which the amount is received by us or credited to our bank account. In the event of late payment by the customer, we are entitled to charge interest at the statutory rate (for fee claims, 9 percentage points above the base rate) for the duration of the delay. This does not limit our right to assert further claims for damages (e.g., a flat-rate late payment fee of EUR 40 pursuant to Section 288(5) of the German Civil Code (BGB)) or our rights to take other measures.

6.6 Furthermore, in the event of a delay in payment by the customer, we may, at our discretion, declare outstanding remaining purchase price installments or other claims against the customer due and payable, and make further deliveries under the same contract or under other contracts contingent upon the prior provision of security or payment against delivery.

6.7 We do not pay interest on advance or partial payments.

6.8 The customer is only entitled to set off (including invoice reductions) or withhold payments if their counterclaim is undisputed or has been legally and final ly established. Section 7.4 remains unaffected by this.

7) Warranty (Claims for Defects)

7.1 The statutory provisions apply to the customer’s rights regarding material defects and defects of title in deliveries, unless otherwise specified below. In all cases, the statutory provisions remain unaffected in the event of final delivery of the unprocessed goods to a consumer.

7.2 Claims for defects by the customer require that the customer has properly fulfilled their obligations to inspect and give notice of defects in accordance with § 377 HGB, i.e., that the delivered goods must be inspected immediately and defects must be reported to us without delay, or, if a defect becomes apparent later in the ordinary course of business, that this defect must be reported to us immediately upon discovery, in particular—where applicable—before the start of further processing.

7.3 If a delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected. The customer may refuse subsequent performance if it is unreasonable for them.

7.4 We are entitled to make the owed subsequent delivery contingent upon the customer paying the price owed by him. In the event of defects, the customer is entitled to a right of retention only to the extent that this is proportionate to the defects and his counterclaim is based on the same contractual relationship.

7.5 The customer must give us the time and opportunity necessary for the required subsequent performance, in particular by handing over or making available the goods subject to complaint for inspection purposes. Upon request, the customer must provide us with a sufficient quantity of an unadulterated sample of the goods subject to complaint in a suitable container for inspection. In the event of a replacement delivery, the customer must return the defective goods to us in accordance with statutory provisions. Rectification does not include either the removal of the defective goods or their reinstallation if we were not originally obligated to install them.

7.6 A right to withdraw from the contract or a claim for a price reduction exists only if the defect cannot be remedied within a reasonable period to be set by the customer, if subsequent performance involves disproportionate costs, is unreasonable, or is to be regarded as having failed for other reasons. However, the customer has no right of withdrawal in the case of minor defects.

7.7 If the customer’s request for rectification of the defect proves to be unjustified, we may demand reimbursement from the customer for the costs incurred as a result (in particular inspection and transportation costs), unless the absence of a defect was not apparent to the customer.

7.8 Claims for defects do not apply, in particular, in cases of normal wear and tear, or if the defect is attributable to a violation of operating, maintenance, assembly, or installation instructions, unsuitable or improper use or storage by the customer, or interference by third parties.

7.9 Compensation for damages and reimbursement of expenses may only be claimed in accordance with Section 8 and are otherwise excluded.

8) Liability (Claims for Damages) and Statute of Limitations

8.1 We shall be liable without limitation for claims for damages of any kind, in particular arising from fault at the time of contract conclusion, breach of duty, and tort, to the extent that we, our legal representatives, or vicarious agents are guilty of intent or gross negligence. The same applies if we fraudulently conceal a defect or to the extent of a guarantee assumed by us. Limitations of liability also do not apply in cases of liability under mandatory statutory provisions (e.g., the Product Liability Act and Sections 445a, 445b, 478 of the German Civil Code (BGB)).

8.2 In the event of damages resulting from injury to life, limb, or health, or from the breach of essential contractual obligations (cardinal obligations), we are also liable for slight or simple negligence. A contractual obligation is essential if its fulfillment is a prerequisite for the proper performance of the contract and the customer regularly relies on and is entitled to rely on its fulfillment. In the event of a breach of essential contractual obligations, however, our liability is limited to the average damage typical for the contract and foreseeable based on the nature of the breach. Otherwise, and subject to the cases in Section 8.1, our liability for breaches of duty resulting from slight or simple negligence is excluded. The foregoing limitation of liability also applies to breaches of duty by our employees, staff, officers, representatives, and vicarious agents.

8.3 We shall be liable for infringements of intellectual property rights in connection with deliveries in accordance with the provisions of this Section 8, provided that such rights—which are valid in the Federal Republic of Germany and/or at the place of performance and are published at the time of our delivery—are infringed upon when the delivered goods are used in accordance with the contract. This does not apply if we have manufactured the delivered item based on designs, drawings, models, or other descriptions or specifications provided by the customer, if the customer has provided or selected materials, parts, or components for us, and if we did not know and had no reason to know that this would infringe third-party intellectual property rights. The customer is obligated to inform us immediately of any potential or alleged infringements of intellectual property rights that come to their attention.

8.4 For claims regarding defects in the delivered goods pursuant to Section 7, the general statute of limitations, notwithstanding Section 438(1)(3) of the German Civil Code (BGB), shall be one year from the date of delivery or, if the customer is required to pick up the delivered goods, from the date of notification of readiness for shipment, or from the date of acceptance, provided that acceptance has been agreed upon. The one-year limitation period also applies to the Customer’s contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in the individual case. In any case, the statutory limitation periods for the customer’s claims for damages pursuant to Sections 8.1 and 8.2 remain unaffected to the extent specified therein.

9) Compliance, Recalls, and Foreign Trade Law

9.1 The customer is obligated to comply with applicable foreign trade regulations, in particular the applicable German, European, and U.S. export control regulations. In connection with our deliveries, the customer further undertakes to comply with all laws applicable to it. This includes, in particular, refraining from engaging in transactions related to ABC weapons or military end-uses, and refraining from maintaining any direct or indirect business or other ties to terrorists, terrorist organizations, or other criminal or anti-constitutional organizations, and to ensure, through appropriate organizational measures, the implementation of applicable embargoes, applicable European regulations on combating terrorism and crime, as well as corresponding U.S. or other applicable provisions within the scope of its business operations, in particular through appropriate software systems. Once goods have left our respective facility, the Customer shall be solely responsible for compliance with the aforementioned provisions and shall indemnify us against all claims and costs incurred by us as a result of a corresponding legal violation by the Customer, its affiliated companies, or employees, agents, or vicarious agents—including reasonable attorneys’ and consultants’ fees or administrative fees or fines—unless the Customer is not at fault.

9.2 To the extent that a party reasonably believes that a mandatory or voluntary recall concerning the subject matter of the deliveries, a large-scale voluntary exchange of delivered products, or a recall of significant inventory held by the customer and/or distributors, or a comparable action (hereinafter: “Recall”), the parties shall coordinate with each other in good faith regarding the course of action. Each party shall designate a contact person for communications related to the recall.

9.3 To the extent that our deliveries to the customer include products or goods falling within the scope of Article 12g of Regulation (EU) No. 833/2014 or Article 8g of Regulation (EC) No. 765/2006, as amended, the following shall apply in addition:

The customer is prohibited from any direct or indirect sale, export, or re-export of deliveries falling within the scope of Article 12g of Regulation (EU) No. 833/2014 or Article 8g of Regulation (EC) No. 765/2006, as amended, to the Russian Federation or Belarus, or for use in the Russian Federation or Belarus.
The customer is obligated to use its best efforts and take appropriate and reasonable measures to ensure that the purpose of the provision in subparagraph (a) is not circumvented by third parties in the downstream supply or distribution chain. This includes, in particular, contractual or organizational safeguards to ensure that resellers, dealers, or other customers do not make deliveries or provide goods to customers in the Russian Federation or Belarus, or for use in the Russian Federation or Belarus.
To comply with these obligations, the Customer shall establish and maintain an appropriate control and monitoring procedure to identify actions or circumstances that could contravene the purpose of subparagraph (a). The scope of monitoring shall be based on the nature, risk, and distribution structure of the goods.
Any culpable breach of any of the obligations under subparagraphs (a) through (c) constitutes a material breach of contract. In the event of such a breach, we are therefore entitled to immediately suspend further deliveries to the Customer, to cancel any orders that have not yet been fully executed, and to claim damages in accordance with statutory provisions. We reserve the right to assert further rights, in particular the immediate termination of the business relationship in its entirety.
The customer is obligated to inform us immediately in writing of all circumstances, difficulties, or findings that indicate a potential or actual violation of subparagraphs (a) through (c), including any relevant activities by third parties that could frustrate the purpose of subparagraph (a). Upon request, the customer must provide us with appropriate information and evidence of compliance with the aforementioned obligations within two weeks of receiving an informal request.

10) Place of Performance, Jurisdiction, Other Agreements

10.1 The customer is entitled to assign its claims arising from the contractual relationship with us only with our prior consent; § 354a HGB remains unaffected.

10.2 “In writing” or “written form” as used by this GTC refers to the written form (§ 126 BGB) or text form (§ 126b BGB). Legally relevant declarations and notifications to be made by the customer to us in connection with deliveries (e.g., setting of deadlines, notices of defects, declarations of withdrawal or reduction) must be made in writing. Statutory formal requirements and the request for further evidence, in particular in cases of doubt regarding the legitimacy of the declarant, remain unaffected by this.

10.3 The exclusive place of jurisdiction for all claims and disputes arising from or in connection with our deliveries is Elmshorn. This place of jurisdiction also applies to disputes regarding the formation and validity of the contractual relationship. However, we are also entitled to sue the customer before the courts having jurisdiction over the customer’s place of business.

10.4 If the customer is domiciled outside the Federal Republic of Germany, we are also entitled, at our discretion, to have all claims, disputes, or disagreements arising from business relationships with the customer finally decided in accordance with the Rules of Arbitration of the German Institute of Arbitration (DIS), excluding ordinary legal recourse. The seat of the arbitral tribunal shall be in Frankfurt. The arbitration proceedings shall be conducted in German, unless the customer requests English as the language of the proceedings. The applicable law in the matter is German law.

10.5 Deliveries and these GTC shall be governed exclusively by the laws of the Federal Republic of Germany, excluding its conflict-of-laws provisions to the extent that they refer to the application of another legal system, and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as any other bilateral or multilateral agreements aimed at standardizing international sales.